Fireman's Fund American Ins. Co. v. Hester, No. 42297

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: PANNELL; FELTON, C.J., and FRANKUM
• Citation: 115 Ga.App. 39,153 S.E.2d 622
• Parties: FIREMAN'S FUND AMERICAN INSURANCE COMPANY et al. v. J. C. HESTER
• Docket Number: No. 42297,No. 1
• Decision Date: 16 January 1967

Page 622

153 S.E.2d 622 115 Ga.App. 39 FIREMAN'S FUND AMERICAN INSURANCE COMPANY et al.
v.
J. C. HESTER. No. 42297. Court of Appeals of Georgia, Division No. 1. Jan. 16, 1967.

[115 Ga.App. 40]

Page 623

J. C. Hester filed a claim for compensation against Modern Homes Construction Company and Fireman's Fund American Insurance Company, the insurer, for disability allegedly occasioned by a heart attack claimed to have been suffered by him as an accidental injury arising out of and in the course of his employment.

At the hearing there was testimony of a physician on behalf of the claimant who gave his opinion that the claimant had suffered a heart attack when he had a 'seizure' while working on a house being built for Modern Homes Construction Company, that this work was being done, under an agreement whereby claimant was to build houses for a fixed sum per square foot with claimant paying his own labor, that payments to claimant by Modern Homes Construction Company had deducted therefrom workmen's compensation insurance, that a co-worker of the claimant described the 'seizure' had by the claimant at the time. There was other evidence in the case as shown by some of the findings of fact.

The issues were (a) whether the claimant was an employer or independent contractor and (b) if an employee, whether he suffered a heart attack, and if so (c) whether the attack was caused by, or accelerated by, exertion while at his work, or was caused solely by a pre-existing physical condition. The amount of weekly payment to the claimant was stipulated but the defendants specifically deny 'employment of claimant by them and that claimant was injured on the job for defendants.' The director made the following findings of fact and award:

'Findings of Fact: I find from the testimony of J. C. Hester, claimant herein, that he was working for Modern Homes Construction Company, defendant herein, on April 8, 1963, constructing houses from plans and specifications supplied to him by defendant; that defendant furnished the necessary building materials, and claimant furnished the necessary labor; that his immediate supervisor was Jack Seago; that witness was moving bundles of roofing on the roof of the house, weight about eighty pounds each, and 'I had a seizure' causing pain in the arms and a [115 Ga.App. 41] 'crushing pain in the left chest'; that following the 'seizure' the pain subsided and witness returned to his work and helped finish the roofing job; that on April 18, 1963, witness saw a doctor who hospitalized him after having the same type seizure, 'laid ahold of me again' while

Page 624

working at a house for Modern Homes removing a set of steps therefrom for the purpose of making repairs to the porch; that witness returned to his job within about three days from hospitalization and light duty, or no work at all, and as a supervisor for about six weeks to the month of December, 1963, when witness took a job as building supervisor at $100.00 per week; that witness did not exert himself at the time of the seizure to a greater degree than he normally had in the past; that on this particular job 'I lost lots of time. I was paid by the job, and the longer I stayed, the more expenses I incurred and the less profits I made'; that witness was paid $320.00 for building an eight hundred foot house, and he paid his helpers from the proceeds.

'I find from the testimony of Dr. Morris Davis of Tifton, Georgia, taken by deposition by the respective parties at his office March 21, 1964, and now admitted to this record, that he has professionally treated the claimant herein on several occasions prior to April 18, 1963, when he visited witness' office complaining of pain in his chest radiating down his...