Davis v. American Mut. Liability Ins. Co.

• Decision Date: 07 September 1945
• Docket Number: 30958.
• Parties: DAVIS v. AMERICAN MUT. LIABILITY INS. CO. et al.
• Court: Georgia Court of Appeals

35 S.E.2d 203

72 Ga.App. 783

DAVIS v. AMERICAN MUT. LIABILITY INS. CO. et al.

No. 30958.

Court of Appeals of Georgia, Division No. 2.

September 7, 1945

Syllabus by the Court.

1. Findings of fact by the State Board of Workmen's Compensation, supported by some competent evidence, and within the power of the board, are, in the absence of fraud conclusive and binding on the courts.

2. The finding of the board that the claimant's injury did not arise out of and in the course of his employment, being supported by some competent evidence, is conclusive and binding in the present case.

3. Accordingly, the judge of the superior court did not err in affirming the award of the board denying compensation.

D C. Sapp, of Douglas, for plaintiff in error.

Neely Marshall & Greene, of Atlanta, for defendants in error.

SUTTON Presiding Judge.

J. O. Davis filed with the State Board of Workmen's Compensation a claim against J. A. Jones Construction Company, as employer, and the American Mutual Liability Insurance Company, as insurance carrier, seeking compensation for an accidental injury arising out of and in the course of his employment. He was employed by J. A. Jones Construction Company as a 'heater and shrinker' and claimed that, on June 12, 1943, while working in the deckhouse on a boat that was being constructed by his employer, he suffered heat exhaustion, which resulted in rendering him totally incapacitated for work. After several hearings, the director of the State Board of Workmen's Compensation made his findings of fact and entered an award denying compensation. On appeal, the award was approved by the full board, and thereafter was affirmed by the superior court of Glynn County. The claimant in his bill of exceptions makes three assignments of error, to wit: '(1) The directors acted without or in excess of their powers, in finding an award adversely to claimant without any competent evidence to support the finding. (2) There is not sufficient competent evidence in the record to warrant the directors in making the order or decree complained of. (3) The order or decree is contrary to law.'

At the first hearing before the single director, it was admitted by counsel for the defendants that the claimant, on June 12, 1943, was employed by J. A. Jones Construction Company at a specified salary and that the employer had notice or complaint of the alleged accident within due time; but it was denied that the claimant had suffered an accident arising out of and in the course of his employment.

The claimant testified substantially that, on June 12, 1943, he was employed as an electric welder--that is, as a heater and shrinker which required the use of a heating torch, and the same was accompanied by a spray of water; that, on the afternoon of June 12, 1943, while heating the overhead in the deckhouse on boat 109, he suddenly turned blind and staggered off of a nail keg on which he was standing, and that he cut his torch off and staggered onto the deck of the boat, and suffered a pain in his left chest in the region of his heart; that, while standing out there cooling off, his foreman or leader-man, R. L. Lane, came by and the claimant explained to him that he had gotten too hot inside, and was told by R. L. Lane to stay outside and cool off, and he would probably be all right, Lane stating that in the meantime he would heat and shrink for him and that Lane took the torch and heated and shrank for him while he cooled off, and in a little while thereafter came back to him and asked if he felt better, and the claimant told him that he did, and then took over his work and made two or three more heats and shrinks that afternoon before quitting time at 4:30 o'clock; that this was on Saturday afternoon, and on Sunday he was unable to work, but on Monday morning he decided he would try to go back to work, and that afternoon began feeling worse and was not able to 'make it,' and went down and reported the incident to the clinic, and on Tuesday morning still was not feeling any better and went home; and that, since that time, he has not been able to do any work of any kind and has been going to his physician from once to twice a week and has been in bed approximately half of his time. He also testified that he had been examined by the shipyard's physician in October, 1943, and again immediately prior to the hearing of his case; and that, when the original hearing was scheduled for March 3, 1944, he had his attorney to telephone the director of the board and requested a postponement of the hearing, as he had suffered a heart attack and would not be able to attend the hearing; and he stated that he had suffered a heart attack about 10 o'clock on the Wednesday night before the scheduled hearing on March 3, 1944, and had had several of these attacks since then, sometimes from one to two a week.

The testimony of the claimant was contradicted by the witnesses for the defendants. R. L. Lane, the foreman or leaderman of the claimant, testified that the claimant was not working in the deckhouse on boat 109, on June 12, 1943, as he claimed but that he was working on what was known as the mast house on the outside of the boat where the mast pole attaches, and was welding what is known as the stump. He testified that the claimant made no complaint to him of becoming overheated while on the job, and denied that he had relieved him, as the claimant contended. Lane's testimony was corroborated by L. H. Young, who was the foreman on the job; and Young testified that on the afternoon of June 12, 1943, he saw the claimant twice, and...