Rittenhouse v. U.S. Fidelity & Guaranty Co., 36853

CourtUnited States Court of Appeals (Georgia)
Citation100 S.E.2d 145,96 Ga.App. 407
Docket NumberNo. 2,No. 36853,36853,2
Decision Date25 September 1957

Syllabus by the Court.

1. The deposition of the Chattanooga, Tennessee, doctor taken before an out of state notary public was properly in evidence.

2. The evidence was sufficient to authorize the finding on the part of the hearing director that the claimant had not carried the burden of proving that his disability resulted from an accident arising out of and in the course of his employment.

Leonard Rittenhouse filed a claim for workmen's compensation against his employer, Duchess Chenilles, Inc., and its insurance carrier, United States Fidelity & Guaranty Company, seeking compensation resulting from a disability to his hands and feet alleged to have resulted from his work with dye solutions. The hearing director denied compensation, and this action was affirmed by the full board and the Judge of the Superior Court of Whitfield County, respectively, on appeal.

Malcolm C. Tarver, Dalton, for plaintiff in error.

Hardin & McCamy, Carlton McCamy, Dalton, for defendants in error.


1. It is contended by counsel for the plaintiff in error that, due to certain irregularities, the depositions of Dr. Thompson taken by counsel for the employer were erroneously considered. The record shows that at the commencement of the hearing counsel for the employer moved to continue for the purpose of taking additional medical testimony, stating they would like for claimant to be examined by Dr. Thompson of Chattanooga. The director stated: 'Yes sir, we will leave the file open for additional medical testimony and give you 20 days in which to take that. Mr. Tarver, you understand the claimant is to submit himself for a reasonable examination?' Mr. Tarver: 'We will be very glad to do that. I advised Mr. Boggs two or three days ago the name of the doctor. But I think it is quite proper they should have the privilege of having him examined by another doctor. We have no objection to a continuance for that purpose [and] letting us get our doctor.' At the conclusion of the hearing the director stated: 'I give you 20 days to take your medical testimony.' Mr. Tarver: 'You want to take Dr. Thompson?' Mr. Boggs: 'Yes sir.'

Within the 20 day period the depositions of Dr. Thompson were taken and claimant's attorney appeared and cross-examined the witness. He does not now contend that they are inaccurate in any point, or that he was not present or that for lack of notice or any other reason the manner in which the depositions were taken worked any hardship on him. He fails even to contend that there is any irregularity in the taking of the depositions by a notary public of the State of Tennessee, but contends that an agreement recited in the depositions themselves is inaccurate, that the notary public who took them was not one designated by the board, that he did not receive a copy as he should have done, and that the depositions were not filed with the board within the 20-day period. Code Ann. § 114-706 provides that 'if either party at issue desires to take the testimony of witnesses without the State the Board or the member may * * * direct the taking of such testimony under the same rules now pertaining to the taking of testimony of persons without the State in civil cases.' Code Ann. § 38-2201 provides for taking deposition without the State 'before any officer of the State or county where the deposition is taken, authorized by the laws of this State to attest deeds, or take acknowledgments.' There is no contentions that the Tennessee notary public who took the depositions of Dr. Thompson was not such a person, and the failure of the board to specifically designate him in advance does not, under the terms of this agreement where at the time both parties knew that an out-of-state witness was to be used, invalidate the depositions. The depositions were taken within the time period agreed upon, and there was no limitation on the time they were to be received by the board. Accordingly, no such irregularity is shown as would invalidate this deposition. As to the objections urged against a part of the doctor's testimony, it is well settled that an award of a Board of Workmen's Compensation will not be reversed either because some irrelevant evidence was admitted (Liberty Mutual Ins. Co. v. Meeks, 81 Ga.App. 800(2), 60 S.E.2d 258) or because there is some irrelevant testimony included in the finding of facts. American Mutual Liability Ins. Co. v. Sisson, 198 Ga. 623, 32 S.E.2d 295. The 5 grounds on which alone a reversal may be granted are listed in Code, § 114-710 as follows: (1) the members acted without or in excess of their powers; (2) the order or decree was procured by fraud; (3) the...

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5 cases
  • Powell v. Lititz Mutual Insurance Company, 26800.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 12, 1970
    ......Montgomery Ward and Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 ...The defendant would have us hold that parties cannot contract for more ......
  • Reliance Ins. Co. v. Oliver
    • United States
    • United States Court of Appeals (Georgia)
    • March 11, 1968
    ...evidence was admitted or because there is some irrelevant testimony included in findings of fact. Rittenhouse v. United States Fidelity, etc., Co., 96 Ga.App. 407, 409, 100 S.E.2d 145. In the opinion on the former appeal, 114 Ga.App. 639, 152 S.E.2d 423, supra, it is stated that there was e......
  • Travelers Ins. Co. v. Hutchens
    • United States
    • United States Court of Appeals (Georgia)
    • September 6, 1962
    ...fact to support the award. Liberty Mut. Ins. Co. v. Meeks, 81 Ga.App. 800, 803-805, 60 S.E.2d 258; Rittenhouse v. United States Fidelity & Guaranty Co., 96 Ga.App. 407(1), 100 S.E.2d 145; Gen. Acc. Fire & Life Assurance Corp. v. Teal, 100 Ga.App. 314(2), 111 S.E.2d 113. The critical fact he......
  • Neal v. Insurance Co. of North America, 46470
    • United States
    • United States Court of Appeals (Georgia)
    • November 17, 1971
    ...v. West, 213 Ga. 296, 298, 99 S.E.2d 89; Ideal Mutual Insurance Co. v. Ray, 92 Ga.App. 273, 88 S.E.2d 428; Rittenhouse v. U.S. Fidelity, etc., Co., 96 Ga.App. 407, 410, 100 S.E.2d 145. Judgment PANNELL and DEEN, JJ., concur. ...
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