Insurance Co. of North America v. Dimaio, 44257

• Court: Georgia Court of Appeals
• Writing for the Court: WHITMAN; FELTON; EBERHARDT; PANNELL; WHITMAN
• Citation: Insurance Co. of North America v. Dimaio, 170 S.E.2d 258, 120 Ga.App. 214 (Ga. App. 1969)
• Decision Date: 21 May 1969
• Docket Number: Nos. 1,3,No. 44257,2,44257,s. 1
• Parties: INSURANCE COMPANY OF NORTH AMERICA et al. v. Carlo DIMAIO

Page 258

170 S.E.2d 258

120 Ga.App. 214

INSURANCE COMPANY OF NORTH AMERICA et al. v. Carlo DIMAIO.

No. 44257.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 21, 1969.

Rehearing Denied July 30, 1969.

Certiorari Denied Nov. 12, 1969.

Swift, Currie, McGhee & Hiers, Charles L. Drew, Atlanta, for appellants.

Alford Wall, Richard D. Carr, Atlanta, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

The trial court set aside and reversed an award of the Workmen's Compensation Board and remanded the matter to the board for consideration of an application by the claimant to present additional evidence. In reversing and setting aside the award, the trial court was of the opinion, as expressed in its order, that 'the full board overlooked and failed to consider the application of claimant to present additional evidence.'

The record shows that a hearing of the case was had before a deputy director after which findings of fact and award were entered, dated November 16, 1967. The findings and award of the deputy director were appealed to the full board. It was pending the full board's review of the matter that the claimant made a written application dated January 8, 1968, to present additional evidence. The full board made no separate or special ruling or response on the claimant's application; rather on February 9, 1969, it entered an order adopting the findings of fact and award of the deputy director as its own.

The order of the trial court reversing the award and remanding the case to the board is appealed from and enumerated as error. Held:

1. The fact that the board made no separate or special ruling addressed to the claimant's application cannot be a basis for reversal and remand of the board's findings and award. There is no requirement in the statute, as was held in Continental Ins. Co. v. McDaniel, 118 Ga.App. 344, 345, 163 S.E.2d 923, involving a very similar factual situation, that the board must enter an order formally and expressly granting or denying a party's application to have additional evidence taken. Thus the mere absence of such an order in the record, or the presence of a statement in the record by the secretary-treasurer of the board that 'there was never a ruling made by this board on the two letters in question,' cannot be the basis of reversal and remand by the trial court.

2. We may assume that the board considered the application but found it to be without merit.

'The board's power to order the taking of additional evidence on review is a discretionary one. 'The appeal to the board being a de novo proceeding, it may in its discretion hear the parties at issue, their representatives and witnesses.' * * * However, the board is not obliged to take additional testimony where it is not deemed advisable to do so. * * * That discretion must not be disturbed except in cases where it is manifestly abused.

'This court has held that the board, in exercising its power to take additional evidence on review, may properly be guided by principles applicable in the courts in passing on motions for new trial based on newly discovered evidence. * * *' (Citations omitted.) Continental Ins. Co. v. McDaniel, 118 Ga.App. 344, 345, 163 S.E.2d 923, 925, supra.

The application to present additional evidence states that the claimant was an Italian unable to speak English and therefore unable to communicate except through the aid of an interpreter; and that for the first time after the award of the deputy director was read to the claimant did the claimant impart to claimant's attorney the name of a material witness to the case.

But we cannot say, notwithstanding the communication problem, that the new evidence now sought to be presented could not with reasonable diligence have been previously discovered and presented. There was no manifest abuse of discretion by the board in not allowing additional evidence.

The trial court erred in setting aside the award.

Judgment reversed.

BELL, P.J., JORDAN, P.J., and EBERHARDT and QUILLIAN, JJ., concur.

FELTON, C.J., and HALL, PANNELL and DEEN, JJ., dissent.

EBERHARDT, Judge, concurring.

I am in agreement with the majority opinion. However, there are some observations that I feel it proper to make.

I agree that when a statute provides that an official performing a judicial or a quasijudicial function may exercise a discretion, there is a correlative duty upon him to do so when he is confronted with a motion or other situation involving an exercise of discretion. See cases cited in American Liberty Ins. Co. v. Sanders, 120 Ga.App. 202, 170 S.E.2d 249. I agree, too, that the failure or refusal of such an officer to rule on a matter properly presented for the invoking of a ruling is tantamount to an adverse ruling, and if the matter invoked the exercise of a discretion it is tantamount to a failure to exercise a discretion at all. See Waldrop v. Wolff & Happ, 114 Ga. 610, 613, 40 S.E. 830. And an arbitrary or capricious use of, or an abuse of discretion is the equivalent of a failure to exercise it at all. South View Cemetery Assn. v. Hailey, 199 Ga. 478, 483, 34 S.E.2d 863.

However, there is a presumption that officials perform their duties in accord with the requirements of law. Marshall v. Russell, 222 Ga. 490(1), 150 S.E.2d 667. I think Judge Whitman, for the majority, properly concludes that '(w)e may assume that the board considered the application (to hear additional testimony) but found it to be without merit.' To state it another way, since there is nothing in the record to indicate that the board either failed to exercise its discretion or abused its discretion in this respect, it is presumed that it did exercise it and did so properly. Milton v. Mitchell County Elec., etc., Assn., 64 Ga.App. 63, 64, 12 S.E.2d 367; Chambless v. Oates Plumbing, etc., Co., Inc., 97 Ga.App. 80, 81, 102 S.E.2d 83.

The recital in a certificate of the secretary-treasurer of the board that there was never a ruling on the application amounts to no more than a certificate that no order or ruling on it appears in the record on file with him. It is provided in Code § 114-710 that within 30 days after the filing of an appeal to the superior court the board shall 'cause certified copies of all documents and papers then on file in their office in the matter, and a transcript of all testimony taken therein, to be transmitted with their findings and order or decree to the clerk of the superior court to which the case is appealable.' And see Rourke v. United States Fidelity & Guaranty Co., 187 Ga. 636(4), 1 S.E.2d 728.

The situation in American Liberty Ins. Co. v. Sanders, supra, was altogether different. In that case, and in cases cited, it affirmatively appeared from the order of the court or from other circumstances that there was no exercise of discretion.

PANNELL, Judge (dissenting).

On appeal to the superior court, the judge of the superior court requested from the State Board of Workmen's Compensation additional information pertaining to the record referring specifically to the letter to the board from Mr. Wall dated January 8, 1968, and a letter to the board from Mr. Drew with reference to the same subject matter, and inquiring as to whether or not the board ever made any ruling on the request to present additional evidence. The board replied to this order of the judge of the superior court requesting this information by stating that the 'instruments' (the letters) had already been forwarded and that 'there was never a ruling made by this board on the two letters in queston and the only ruling made by the full board in this case was the award dated February 9, 1968.' This letter was signed: 'State Board of Workmen's Compensation (S) James C. Pullin. James C. Pullin. Secretary-Treasurer.'

In my opinion, this letter from the board settles this question and this court cannot by construction reach a contrary 'presumption.' In my opinion, the judge of the superior court was correct in so holding and in remanding the case to the State Board of Workmen's Compensation for consideration of the application to present additional evidence.

The State Board of Workmen's Compensation is not a court but an administrative body, and '(i)n the administration of the Act, the technical niceties of pleading and procedure as applied to courts of law and equity need not be strictly followed. Maryland Cas. Co. v. Gill, 46 Ga.App. 746, 748, 169 S.E. 245; Jones v. American Mut. Liab. Ins. Co., 48 Ga.App. 351, 352, 172 S.E. 600.' Continental Ins. Co. v. McDaniel, 18 Ga.App. 344, 345, 163 S.E.2d 923, 925. Since the Civil Practice Act, applied on the motion for rehearing, applies only to courts of record in this State, they cannot be applied to the State Board of Workmen's Compensation on a mandatory basis.

On Motion for Rehearing.

WHITMAN, Judge.

The motion for rehearing by the claimant-appellee is hereby denied. The motion deals with the question of the action or non-action of the Board with respect to the application of claimant of date January 8, 1968. In view of the motion it is deemed appropriate here to amplify the majority opinion by setting forth particular facts as shown by the record and related legal principles regarded as applicable thereto.

1. The hearing in this case before the deputy director was held on September 1, 1967. The hearing before the full board was had more than four months thereafter. The award of the full board of date February 9, 1968 recites: 'The above styled case came on for consideration before the full board on January 8, 1968, on appeal from the award of the deputy director dated November 16, 1967.' The application of counsel for claimant was in letter form and bears date January 8, 1968, and states that 'the above case was scheduled for hearing this date (January 8, 1968) before the full board,' and by this letter motion was made to 'grant to the claimant the right to reopen his case for the purpose of taking additional testimony,' an...