Mccormack v. Shadburn, 20807.

• Decision Date: 18 December 1930
• Docket Number: No. 20807.,20807.
• Parties: McCORMACK et al. v. SHADBURN.
• Court: Georgia Court of Appeals

42 Ga.App. 352

156 S.E. 277

McCORMACK et al.

v.SHADBURN.

No. 20807.

Court of Appeals of Georgia,

Division No. 1.

Dec. 18, 1930.

Syllabus by the Court.

Under the record in this case, the judge of the superior court erred in so far as he disallowed the penalty and attorney's fee assessed by the Industrial Commission under the Workmen's Compensation Act.

Error from Superior Court, Gwinnett County; W. W. Stark, Judge.

Proceedings under the Workmen's Compensation Act between Naomi McCormack and others and R. T. Shadburn. Award of Industrial Commission was affirmed in part, and disallowed in part, and former parties bring error.

Reversed as to part of judgment disallowing award, and finding of Industrial Commission reinstated.

Archibald H. Davis, of Atlanta, for plaintiff in error.

LUKE, J.

The Industrial Commission of Georgia, upon the application of R. T. Shadburn for a review of the award of Commissioner Land, affirmed the commissioner's award of compensation, with the addition of a penalty of $153, and an attorney's fee of $306, payable to the respective persons held to be entitled thereto, as a penalty, provided for by section 67, paragraph (b) of the Workmen's Compensation Act (Laws 1920, p. 204) for willful failure on the part of the employer to comply with the provisions of the act, by either rejecting the act, insuring as required by the act, or by securing the permission of the Industrial Commission to pay compensation direct.

Upon an appeal by the employer to the superior court of Gwinnett County, the finding of the commission, so far as the award of compensation was concerned, was approved and affirmed; but the assessment of the penalty for failure to comply with the act and the allowance of the attorney's fee were both disapproved and disallowed. Exception was taken to such disapproval and disallowance, and error is assigned upon the ground that the findings of the commission in the premises are essentially findings of fact, which, under the recognized rules of law, are not to be disturbed upon appeal.

Although the bill of exceptions appears to be duly certified as true, and as containing all the evidence and specifying all of the record material to a clear understanding of the errors complained of, our careful inspection fails to disclose any evidence whatever upon the question of whether there was willful neglect on the part of the employer to complywith the act, as a result of which the commission was warranted in assessing the penalty and...