Simpson v. Liberty Mut. Ins. Co.
| Decision Date | 06 May 1959 |
| Docket Number | No. 1,No. 37609,37609,1 |
| Citation | 99 Ga.App. 629,109 S.E.2d 876 |
| Parties | IVY L. SIMPSON v. LIBERTY MUTUAL INSURANCE COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. None of the three grounds of the motion to dismiss the writ of error is meritorious and the motion is denied.
2. The only provision of law for the State Board of Workmen's Compensation to review a settlement which had been made the judgment of the board is a review based on a change in condition, as provided in Code § 114-709, and the board is without jurisdiction to set aside a settlement allegedly procured by fraud and to decide that the injury sustained did not arise out of and in the course of employment as stipulated in the settlement. Consequently the court erred in affirming the director's award denying further compensation.
On November 7, 1957, Ivy L. Simpson filed with the State Board of Workmen's Compensation a claim for compensation. Thereafter, the claimant, the employer and the carrier entered into an agreement providing for compensation at the rate of $26.32 per week, which agreement was approved by the Board of Workmen's Compensation and made the award of said board on January 7, 1958. Compensation was paid to the claimant under the agreement until May 3, 1958, on which date the employer and the carrier, now defendants in error, filed written application with the board and requested a hearing
Pursuant to this application, a hearing, with notice to all concerned, was held on June 12, 1958. At the hearing evidence was introduced by all parties. On September 22, 1958, the State Board of Workmen's Compensation made an award as follows: Thereafter, the claimant appealed to the Superior Court of Muscogee County, which on December 15, 1958, affirmed the foregoing award. The claimant assigns error on this judgment on the ground that the board did not have jurisdiction to set aside the agreement for fraud.
Richard H. Baker, Paul Blanchard, Columbus, for plaintiff in error.
Hatcher, Smith, Stubbs & Rothschild, Albert W. Stubbs, Columbus, for defendant in error.
1. (a) In support of their motion to dismiss the writ of error, the defendants in error contend that the bill of exceptions does not name or specify a defendant in error. Code § 6-1202, as amended (Ga.L.1957, pp. 224, 227-229), states in pertinent portion: While it is true that the bill of exceptions does not contain the usual recital naming defendants in error as such, the record shows clearly who were the parties to the litigation in the court below. In addition, the bill of exceptions sets out all parties to the case and specifies Ivy Lee Simpson as plaintiff in error. Under these circumstances, the mere failure to designate the opposite parties as defendants in error is not a ground for dismissal. Anderson v. Heyward, 96 Ga.App. 683, 101 S.E.2d 110, cited by defendants, deals solely with the validity of service of a bill of exceptions, which issue is not here involved.
(b) The defendants in error also urge dismissal of the writ of error for the reason that the evidence introduced before the Workmen's Compensation Board has not been brought to this court in any manner authorized by law. The transcript of proceedings and testimony before the board was not included in the bill of exceptions originally tendered to the trial judge, but was added thereto by a purported amendment stating that plaintiff 'amends his Bill of exceptions heretofore tendered in the above-captioned case by adding the transcript of the evidence introduced before the director upon which he based his award * * *' The defendants in error contend that the transcript presented with the addition to the bill of exceptions cannot be considered because the 'amendment' presenting it was never allowed by the trial court. This contention, however, overlooks the fact that the transcript when tendered was not legally an amendment to the bill of exceptions, which had not been certified or allowed at that time. As stated in 4A C.J.S. Appeal and Error § 892, p. 839, Since the transcript was therefore not added by way of amendment, it was not necessary for the trial judge to allow it as such. The cases cited by the defendants in error are all concerned with the necessity for the trial court's allowance of an amendment to a petition previously sanctioned, and their rulings do not apply to a mere proffered bill of exceptions. And finally, the erroneous designation of the addition as an 'amendment' by plaintiff in error's counsel is not controlling as to its legal nature.
(c) The defendants in error further contend that the writ of error must be dismissed because certain portions of the record...
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