Lathem v. Hartford Acc. & Indem. Co.

• Decision Date: 14 July 1939
• Docket Number: 27449.
• Citation: 3 S.E.2d 916,60 Ga.App. 523
• Court: Georgia Court of Appeals
• Parties: LATHEM v. HARTFORD ACCIDENT & INDEMNITY CO. et al.

3 S.E.2d 916

60 Ga.App. 523

LATHEM v. HARTFORD ACCIDENT & INDEMNITY CO. et al.

No. 27449.

Court of Appeals of Georgia, Division No. 1.

July 14, 1939

Rehearing Denied July 28, 1939.

Syllabus by the Court.

Wheeler & Kenyon and Chas. J. Thurmond, all of Gainesville, for plaintiff in error.

Wm P. Whelchel, of Gainesville, for defendants in error.

MacINTYRE Judge.

This is a workmen's compensation case. Mrs. Roy E. Lathem filed a claim against Davis-Washington Company and the Hartford Accident and Indemnity Company. The Single Director made the following finding: "That the deceased Roy E. Lathem had a pre-existing interior deformity; (b) That he suffered a strain which set up a condition resulting in his death; (c) That the strain suffered by the deceased was sustained while he was working for Davis-Washington Company and that it arose out of and in the course of his employment; (d) That notice of the claim of accident was given to Davis-Washington Company within the thirty day period as provided by law; (e) That the weekly wage of the deceased at the time of his injury was $18.46; (f) That Mrs. Roy E. Lathem, the wife, and a two year old daughter were wholly dependent upon the deceased for support and that they as such dependents were entitled to receive compensation from the defendants in certain sums as set forth in the award for a period not exceeding three hundred weeks from the date of the accident; (g) That the defendants should also pay $100.00 on the funeral expense of the deceased and reasonable medical and hospital bills for his last sickness." On appeal, the full Board of Directors of the Department of Industrial Relations unanimously affirmed the findings and approved the award as made by the single Director. The insurance carrier appealed to the superior court and the judge, in reversing the findings of the Industrial Commission said "that the findings of fact and the conclusions of law, are unsupported by the evidence in said case and further that there is not sufficient competent evidence in the record to warrant Director Tucker and the full Board of Directors in making the award, order or decree complained of and that the facts found by Director Tucker and approved by the full Board do not support the award thus made."

The correctness of this ruling by the superior court judge is now before this court, and the only question presented is whether or not there was sufficient competent evidence to sustain the award.

It is admitted by the defendant in error that the Industrial Commission was authorized to find "that the deceased was employed at the date and time contended by the claimant" but contend that "all of the evidence even tending to show an accidental injury is based on hearsay."

Code, § 38-301, delares that: "Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in specified cases from necessity."

This court in the case of Mutual Life Insurance Co. v. Davis, 48 Ga.App. 742, 173 S.E. 471, 473, has said that "it would seem that, where death has sealed the mouth of a witness, the same necessity [necessity to prevent the miscarriage of justice] would make admissible his representations to his physician as to his injury and its cause; it being contended that such injury was the cause of his death, and there being no other witness thereto except the deceased." See, also, Feagin v. Beasley, 23 Ga. 17; Omberg v. United States Mutual Accident Association, 101 Ky. 303, 40 S.W. 909, 72 Am.St.Rep. 413; Eckles & Brown v. Bates, 26 Ala. 655 (1); Rogers v. Crain, 30 Tex. 284; Wilhelmi v. American Ry. Express Co., 142 A. 555, 6 N.J.Misc. R. 674. Under that ruling it therefore follows that the testimony of Dr. W. R. Garner, who first attended the deceased after the injury, that the deceased told him that he obtained this injury while lifting a box of glass was admissible, if for no other reason, out of necessity. It is admitted that the Industrial Commission was authorized to find that the deceased was employed by Davis-Washington Company on April 16, 1936, the date of the alleged injury, and "even though there is no direct evidence that an injury to a workman arose out of and in the course of his employment an inference to this effect may be drawn where the known facts are more consistent with the theory that the injury did so arise than with the theory that the accident occurred in some other manner." Bradbury's Workmen's Compensation Law, 400 (10).

Page Lathem testified that he saw the deceased working on the Robinson-Ham Building, a building being repaired by Davis-Washington Company, on April 14th and 15th, which was the week following the Gainesville storm. Joe Reed testified that he carried the deceased and Jack Monday to work for Davis-Washington Company and that they worked together on the Robinson-Ham Building and that they were doing the same class of work. Jack Monday testified that the deceased worked with him on up until the time he got hurt and that he himself received 50 cents per hour and that he did not know what the deceased received but that glazers received from 40 to 50 cents per hour. There is other evidence that the deceased received 20, 25 and 40 cents per hour. Joe Ash testified that he carried dinner to his father, the deceased, two or three days before the Saturday the doctor came, which was April 18, 1936. Mrs. Lathem, the claimant, testified that the deceased was 25 years old, weighed around 175 pounds, was about 5 feet 10 inches tall, and was a very able bodied man. That he came home on April 16th complaining of excruciating pain in the region of his right hip and back, stating that he received a strain lifting a box of glass; that he did not rest well that night and she tried to persuade him to remain at home the next day; that he worked all the next day and although she again urged him to remain at home, he went to work again on Saturday, April 18th; that on "Saturday night when he came home, his brother was dragging him and he was following until the neighbors heard him and we called the doctor, Dr. Garner, and he came out there and examined him." Wash Lathem, brother of the deceased, testified that he filed notice of the deceased's injury within 30 days from the date of the injury. That on Saturday April 18th he picked up the deceased in his automobile to carry him home, having noticed something was wrong with him; that "he [deceased] went to get into the car, and he liked to never gotten in. He was holding himself and I assisted him as much as possible." That he let the deceased out at the store to pay a bill and get some groceries and that the store was about one fourth of a mile from his (deceased's) home. Mrs. Norah Ash, who lived across the road from the deceased, testified that "he came home on Saturday afternoon crying and complaining of his back, and he couldn't walk all the way home. He came from town and stopped out at his brother's out there complaining and he almost carried him on home and then they called Dr. Garner and he came down there that night and examined him the best he could. He couldn't get to bed, he sat in the chair until some men put him to bed and the doctor asked him a good many questions and examined him the best he could. ***"

Dr. W. R. Garner testified that he first treated the deceased for a boil about the 1st of April. That he first treated the deceased for the back injury on April 18, 1936, and that because of such injury he took a urine test and found blood in the specimen. That he watched the deceased for a few days and then had him removed to a hospital. An operation followed which he witnessed and which revealed nothing that was expected and so "he [deceased] was closed up without anything being done." That an autopsy was performed after death and "we also found that he had a swelling in the region of the right lumbar muscles in the back anterior and we investigated the swelling and found what we called the psoas muscle, a very large abscess with a great amount of pus," and that this muscle was used in lifting heavy objects. (There was evidence that the boxes of glass weighed from 40 to 60 pounds.)

Dr. Welchel, who performed the autopsy, read the following part of his findings: "Cause of death, septicemis, miliary abscesses of left kidney; psoas abscess (cause undetermined)." He stated that an abrasion or boil containing pus, if the pus escapes into the blood stream, as a rule it settled in the weakest part of the body. Also that there was no way for this bacteria to get into the psoas muscle other than through the blood stream, unless there is external violence. That this septicemis could be set up by disease, bad tonsils or any infection anywhere in the body. He made the following to the following questions:

"Q. And you treated him just as good as you could and he died and after his death you found an abscess of the psoas muscle: A. Yes, sir.

"Q. That caused his death? A. Yes sir."

Dr. M. B. Allen, who attended the deceased three times before his death and who attended the autopsy, gave the following answer to the following question: "Q. So from your history of the case your experience as a practitioner, is it your opinion that Roy Lathem died from that abscess in his psoas muscle? A. Yes sir, that and his kidney." He further testified that the abscess in the psoas muscle and the condition of his kidney was caused from the injury that he received to his back as related to him by the deceased.

Dr Rogers testified that from the history of the case, he having followed the course of the deceased's trouble throughout until his death, he was of...