Federated Mut. Implement & Hardware Ins. Co. v. Elliott, 34624
| Decision Date | 14 May 1953 |
| Docket Number | No. 34624,No. 2,34624,2 |
| Citation | 88 Ga.App. 266,76 S.E.2d 568 |
| Parties | FEDERATED MUT. IMPLEMENT & HARDWARE INS. CO. et al. v. ELLIOTT |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The finding here, that the failure to give notice to the employer within 30 days of the accident or death, as provided by Code, § 114-303, comes within an exception to the statute, is supported by some evidence, and, no fraud appearing, is conclusive.
2. The crucial test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of master and servant, or that of employer and independent contractor, being the right of the employer under the contract to control the time and manner of executing the work, as distinguished from the right merely to require certain results in conformity to the contract, the workmen's compensation director here was authorized by the evidence to find that the relationship of master and servant existed.
3. Where, as here, there is evidence that the employee suffered from a coronary occlusion while engaged in the regular course of his employment, and where the evidence authorizes the finding that the immediate precipitating cause of injury was overexertion within the regular course of employment, which exertion was too great for the man undertaking the activity in his existing physical condition, the injury is an accident and is compensable; and the fact that total incapacity did not result until after the day's work was over will not alter the situation.
4. It not appearing that this employee had worked at the employment in which he was engaged at the time of the injury 'during substantially the whole of 13 weeks immediately preceding the injury,' and it not appearing that a similar employee in the same employment had worked 'substantially the whole of such 13 weeks,' the Director of the Board of Workmen's Compensation properly applied subsection 3 of Code (Ann. Supp.) § 114-402, which provides as follows: 'If either of the foregoing methods cannot reasonably and fairly be applied, the full time weekly wage of the injured employee shall be used.' Under this rule the finding that the average weekly wages of the deceased were in excess of $48 is authorized.
Mrs. Lillie Belle Elliott filed a claim for death benefits under the Workmen's Compensation Law against Healey Realty & Improvement Corporation, employer of her deceased husband, W. J. Elliott, and its insurance carrier, Federated Mutual Implement and Hardware Insurance Company. Upon the hearing before a single director, the evidence, in its light most favorable to the award, was substantially as follows: that Elliott was a plasterer by trade and worked from a 'pool' or whenever called as his services were needed; that he had been previously employed on jobs by the employer; that on November 14, 1951, he was called to engage in some plastering work; that a permanent employee of the corporation was assigned as his helper; that he was paid an hourly wage of $2.50, and on that day worked nine and one-half hours, although his regular working day was eight hours, five and one-half days per week; that the employer reserved the right to tell him what to do and to supervise the work; that he was engaged in strenuous work during the day, involving climbing up and down a six-foot step ladder with a mortar board loaded with plaster and trowel; that about two or three o'clock in the afternoon his fellow employee noticed him indicating the left side of chest several times and complaining of pain, and that he still complained when he went home; that the following morning the employer's supervisor telephoned and was told he was sick, and was on the same day informed by Elliott's helper that he was sick when he left work; that he remained in bed attended by a physician from that time until December 15, 1951, when he died; that the physician who treated him during this time had also died prior to the hearing, and that the death certificate showed as the cause of death broncho- pneumonia with cardiac failure as the underlying cause. The only medical expert testifying gave as his opinion, based on hypothetical questions, that the employee died of terminal pneumonia; that he suffered a coronary occlusion on November 14 which resulted in 'heart failure' attended by the pneumonia; and that the exertion undergone by the employee in plastering, climbing, and carrying the heavy mortar 'hawk' precipitated a coronary occlusion which was the primary cause of his death.
The award of the director in favor of the claimant was affirmed by the full board and, on appeal, by the Judge of the Superior Court of Fulton County. The exception here is to the latter judgment.
Marvin G. Russell, Turner Paschal, Atlanta, for plaintiff in error.
Joe Salem, Atlanta, for defendant in error.
1. Code, § 114-303 provides in substance that every injured employee shall within thirty days give to his employer notice of the accident or no compensation shall be payable, 'unless it can be shown that the employee had been prevented from doing so by reason of physical or mental incapacity, or by fraud or deceit, or that the employer, his agent, representative, or foreman, or the immediate superior of the injured employee, had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the Department of Industrial Relations for not giving such notice, and it is reasonably proved to the satisfaction of the Department that the employer had not been prejudiced thereby.' The purpose of this provision is undoubtedly to prevent the belated filing of claims which might work a fraud or injustice upon the employer. The employer here received no formal notice until February 6, 1952, which was more than 30 days after...
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