Great Atl. & Pac. Tea Co v. Wilson

• Citation: 171 S.E. 827,48 Ga.App. 34
• Decision Date: 11 November 1933
• Docket Number: Nos. 23334, 23335.,s. 23334, 23335.
• Court: United States Court of Appeals (Georgia)
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. WILSON. WILSON. v. GREAT ATLANTIC &. PACIFIC TEA CO.

48 Ga.App. 34

171 S.E. 827

GREAT ATLANTIC & PACIFIC TEA CO.

v.WILSON.

WILSON.

v.GREAT ATLANTIC &. PACIFIC TEA CO.

Nos. 23334, 23335.

Court of Appeals of Georgia,

Division No. 1.

Nov. 11, 1933.

Rehearing Denied Nov. 27, 1933.

Syllabus by the Court.

1. Without considering the testimony which was objected to as hearsay, there was ample evidence to support the award of the director of the Department of Industrial Relations, and the judge of the superior court did not err in affirming the award.

2: The question of venue, not having been raised before the director, could not for the first time be raised on appeal to the superior court.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Jennie Clements Wilson for the death of her husband, opposed by the Great Atlantic & Pacific Tea Company, employer. Award of the Department of Industrial Relations in favor of claimant was affirmed by the superior court, and the employer brings error, claimant filing a crossbill of exceptions.

Affirmed on main bill of exceptions, and cross-bill dismissed.

Bryan, Middlebrooks & Carter, John A. Dunaway, and Yantis O. Mitchell, all of Atlanta, for plaintiff in error.

Carpenter & Ellis, of Atlanta, for defendant in error.

GUERRY, Judge.

This is a workmen's compensation case. On February 13, 1933, T. E. Whitaker, director of the Department of Industrial Relations, made an award in favor of Mrs. Jennie Clements Wilson against the Great Atlantic and Pacific Tea Company, as the employer of her husband, the deceased. From this award the employer appealed to the superior court. On the 5th day of May, 1933, the judge of the superior court entered a judgment affirming the award of the director. Exceptions were taken to this judgment and the case brought to this court for review. The evidence is without dispute that the employee died. The cause and nature of his death will be discussed later in this opinion. The evidence discloses that the deceased was employed by the Great Atlantic & Pacific Tea Company as the manager of the meat department in one of their stores. In some manner, in the month of January, 1930, the deceased acquired on his left hand an abrasion or cut. There was no direct evidence as to where or the exact time the injury occurred, or that it occurred while in the course of his employment. The evidence on this particular feature of the case was given by the claimant, his wife, who testified that about a week or ten days before the deceased's first visit to the doctor he left forwork one morning without any cuts or abrasions on his hand, and that he returned home that night with the cut in question. It was shown by the claimant and other witnesses that his duties were those of a meat butcher; that in performing his duties he used sharp knives, meat cleavers, and other sharp instruments incident to his employment; that he was, by nature, right-handed; and that the injury appeared on his left hand. Other evidence in this connection was that the deceased lived three miles from his place of employment, that he drove a Ford car to work, and that he ate dinner at a place near his work. The evidence discloses, without dispute, that the hand on which the cut appeared became infected, and the deceased was sent to a doctor, who diagnosed his trouble as tularemia. This diagnosis was confirmed by a report of the state board of health after examining a specimen of his blood. It was shown by the testimony of the doctors who treated the deceased that little is known of the disease called tularemia. It is, however, definitely known that the disease is communicated to human beings by wild rabbits.

Mr. T. L. Wood, who was the manager of the store in which the deceased worked, swore that the store handled wild rabbits during rabbit season; that the month of January was during that season; that, when they were handled, the deceased was the only man that handled them except, perhaps, for a few assistants that he was allowed during the week-end, and that, after the deceased was taken ill, he was served with notice by his superiors to discontinue the handling of wild rabbits. The brother of the claimant swore that he was a frequent visitor to this store, and that he saw the deceased during the month of January and before that time handling rabbits. The deceased's period of illness lasted from January, 1930, until December, 1931. The first doctor who treated him diagnosed his case as tularemia. During the last months of his illness he was treated by another doctor, who testified that he had meningitis. Other doctors who treated him right before his death testified that the deceased had pneumococcus and mastoiditis, and from an autopsy determined that this was the cause of his death. The first doctor testified that tularemia, which had, as a secondary infection meningitis, was the cause of his death.

All of the above evidence as set out excludes all testimony that was objected to as hearsay by counsel for defendant. The finding of the commissioner was as follows: "The director finds that W. A. Wilson sustained an accidental injury arising out of and in the course of his employment with the Great Atlantic and Pacific Tea Company in Fulton county, Georgia, on January 13, 1930, and, as a natural and unavoidable result of that accident, the infection of tularemia developed followed by pneumonia, meningitis, and mastoiditis, all of which finally resulted in the death of Wilson on December 16, 1932."

The first question that arises in this case is, Does the evidence support the above findings of fact by the commissioner? We are, after a careful consideration of the evidence, of the affirmative opinion, and as a direct precedent for our opinion we cite the case of Metropolitan Casualty Insurance Co. v. Crenshaw, 44 Ga. App. 354, 161 S. E. 649. On referring to the record in that case we find a most striking similarity of facts between it and the case at bar. The facts...