Jones v. Am. Mut. Liab. Ins. Co

• Citation: 172 S.E. 600,48 Ga.App. 351
• Decision Date: 09 January 1934
• Docket Number: No. 22995.,22995.
• Parties: JONES. v. AMERICAN MUT. LIABILITY INS. CO. et al.
• Court: Georgia Court of Appeals

48 Ga.App. 351

172 S.E. 600

JONES.

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

No. 22995.

Court of Appeals of Georgia, Division No. 2.

Jan. 9, 1934.

Rehearing Denied Jan. 29, 1934

Syllabus by Editorial Staff.

Error from Superior Court, Bibb County; Louis L. Brown, Judge.

Proceeding under the Workmen's Compensation Act by Dora Jones for the death of her husband, opposed by the American Mutual Liability Insurance Company and another. The Industrial Commission's denial of claimant's right to file her claim was affirmed by the Superior Court, and claimant brings error.

Affirmed.

See, also, 45 Ga. App. 392, 165 S. E. 167.

John J. McCreary, of Macon, and Slabaugh & McDonald, of Newark, Ohio, for plaintiff in error.

Harry L. Greene and McDaniel, Neely & Marshall, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. "A judgment of nonsuit is no bar to a subsequent action for the same cause brought in due time." Civil Code 1910, § 5942. A judgment upon a directed verdict for the defendant, necessarily determining the merits of issues involved in the case, will bind the plaintiff as a res adjudicata or estoppel by judgment against him. See Wolfe v. Ga. Ry. & Elec. Co., 6 Ga. App. 410, 412, 65 S. E. 62; House v. Benton, 42 Ga. App. 97, 155 S. E. 47.

2. "When, at the conclusion of the evidence offered for the plaintiff, it appears that he has failed to make out a prima facie case, it is error to direct a verdict for the defendant on which final judgment can be entered; but the court should award a nonsuit, thereby reserving to the plaintiff the right to institute 'a subsequent action for the same cause, ' if he so desires." Hines v. McLellan, 117 Ga. 845, 45 S. E. 279; Gowen v. New Orleans Naval Stores Co., 157 Ga. 107 (2), 111, 120 S. E. 776; Williams v. Perry, 136 Ga. 453 (3), 71 S. E. 886; Copeland v. Jordan, 147 Ga. 601 (2), 95 S. E. 13; Equitable Mfg. Co. v. J. B. Davis Co., 130 Ga. 67 (4), 71, 60 S. E. 262; Richardson v. Hames, 143 Ga. 392, 85 S. E. 126; Watson v. Barnes, 125 Ga. 733 (2, 3), 735, 54 S. E. 723; Massoud v. Lamar, Taylor & Riley Drug Co., 18 Ga. App. 398 (2). 89 S. E. 442; Williams v. Farmers' State Bank, 22 Ga. App. 656 (4), 660, 97 S. E. 249. See, also, Thompson v. Etowah Iron Co., 91 Ga. 538 (2), 17 S. E. 663; Guest v. Tyner, 141 Ga. 402 (a, b), 81 S. E. 125; Murphy v. Ga. R. & Elec. Co., 4 Ga. App. 522, 523, 61 S. E. 1133.

3. Under section 53 of the Workmen's Compensation Act (Laws 1920, p. 195, as amended by Laws 1925, p. 285), "processes and procedure * * * shall be as summary and simple as reasonably may be." Under section 57 (Laws 1920, p. 197), the Industrial Commission or any of its members, after hearing the parties, their representatives, and witnesses, "shall determine the dispute in a summary manner, " and the "award, together with a statement of the findings of fact and other matters pertinent to the questions at issue, " is then to be "filed with the record of the proceedings." In the administration of the act, the technical niceties of pleading and procedure as applied to other courts need not be strictly complied with. Maryland Casualty Co. v. Gill, 46 Ga. App. 746, 169 S. E. 245, 246. See Southeastern Express Co. v. Edmondson, 30 Ga. App. 697, 699, 119 S. E. 39; Davis v. Menefee, 34 Ga. App. 813 (2), 131 S. E. 527.

4. The powers of the Industrial Commission to reopen and rehear cases in which an award has been made are limited by the compensation act, and, under section 59 (Laws 1920, p. 198), "any award * * * with respect to which no application for a review" is filed when and as provided shall be "a final award * * * conclusive and binding as to all questions of fact, " subject to the right of appeal to the superior court, in which event the findings of fact made by the commission within its power "shall, in the absence of fraud, be conclusive, " and the award is not to be set aside on the evidence unless it be found "that the facts found by the Industrial Commission do not support the order or decree, " or "there is not sufficient competent evidence in the record to warrant * * * the order or decree, " or that it "is contrary to law." The doctrine of res adjudicata applies to such an unreversed order or decree. Gravitt v. Georgia Casualty Co., 158 Ga. 613, 615, 618, 123 S. E. 897; Ætna Life Ins. Co. v. Davis, 172 Ga. 258 (1), 157 S. E. 449; Sutton v. Macon Gas Co., 46 Ga. App. 299, 167 S. E. 543, 544 (2).

5. Where an application for compensation is dismissed by the Industrial Commission or one of its members, without determining the merits of matters in question, and the claim is refiled or a second claim is filed within the one-year limitation of the act (§ 25 [Laws 1920, p. 181, as amended by Laws 1925, p. 284]), or is filed without objection as to such time, the commission or a member may hear and determine the application upon its merits. Thigpen v. Hall, 46 Ga. App. 356, 167 S. E. 728. This rule would also seem to apply where a first claim has been dismissed merely because of insufficient proof, without any award in the employer's favor, where the evidence has not been sufficiently developed by the claimant and no testimony has been offered by the adverse party. But such a rule has no application where, as in the instant case, one of the commissioners hears a claim upon the issue as to whether a deceased employee died by heat exhaustion in the course of his employment, and receives evidence not only from the applicant but from others, and, while making a finding that the claimant has not sustained her claim by competent evidence and dismissing the claim, also makes other findings of fact as to what had been proven; and where...