Southern Bell Tel. and Tel. Co. v. Hodges

• Decision Date: 02 December 1982
• Docket Number: Nos. 64532,64533,s. 64532
• Citation: 298 S.E.2d 570,164 Ga.App. 757
• Parties: SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY v. HODGES et al. HODGES v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.
• Court: Georgia Court of Appeals

Page 570

298 S.E.2d 570

164 Ga.App. 757

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY v. HODGES et al.

HODGES v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.

Nos. 64532, 64533.

Court of Appeals of Georgia.

Dec. 2, 1982.

R. Phillip Shinall, III, Decatur, for Southern Bell Tel. and tel. co.

Joseph Szczecko, Decatur, for Hodges.

McMURRAY, Presiding Judge.

This case involves a widow's claim for workers' compensation by reason of the death of her husband, the employee.

The decedent employee was shot and killed on the premises of his employer (a self-insurer). He was at work at the time, approaching the end of his shift. The parties here have stipulated that he died as the result of a gunshot wound; the location and time of same; he was an employee at work; his average weekly wage; proper jurisdiction and venue; his engagement in the normal course of his duties within said employment; and, he was married to the claimant.

The employer/self-insurer filed a WC-3 form with the board controverting liability, dated May 7, 1979, received May 10, 1979, following the employee's death on May 4, 1979. The widow then filed her claim with the board dated April 22, 1980, received by the board on April 23, 1980.

A hearing was then held by the administrative law judge on January 29, 1981, "to determine all Title 114 questions in connection" with the death of the employee. A presumption of dependency was then found and in the event the claim was compensable the widow would be entitled to maximum death benefits and funeral expenses. The administrative law judge then held that the main issue as disclosed by the facts, was whether or not the employee's death arose out of and in the course of his employment or whether "his death was caused by the willful act of a third person directed against the employee for reasons personal to such employee." The above findings of fact were based upon findings by the administrative law judge that "an unknown assailant" waited for decedent in nearby woods adjacent to the employer's parking facility, smoked cigarettes, apparently sat on the ground, broke off branches to obtain a clear shot in the direction of the decedent's automobile and same was "a planned shooting." Further, a rifle owned by the decedent was used to shoot him, same was later given to the police department by the widow claimant, examined and determined to be the weapon used to shoot the decedent.

Another finding by the administrative law judge was that the widow claimant was urging that the employee was found dead at a place where he might reasonably be expected to be in the course of his employment, and this creates a presumption that his murder arose out of and in the course of his employment. The administrative law judge found that such "an assumption is not correct in that the death ... is explained by the facts surrounding the shooting," shot with his own rifle later found at his home and that he was "shot by someone who knew him, his habits, his work location, and was obviously planned in view of all the surrounding circumstances." No finding was made concerning the assailant and "nothing herein should be indicated to point to any individual as having done the shooting." The administrative law judge found that the employee's death arose in the course of his employment, but "did not arise out of said employment ... [and] was caused by the willful act of a third person directed against the deceased for reasons personal to the deceased." The claimant widow's claim was denied.

On appeal to the superior court it reversed the holding and adopted certain findings of fact of the administrative law judge holding other findings of the administrative law judge were conclusions of law, that is, the findings that the decedent's death was "explained by the facts surrounding the shooting" and did not arise out of his employment, i.e., "caused by the willful act of a third person directed against the deceased for reasons personal to the deceased."

The superior court concluded that having found the employee was shot from ambush "by an unknown assailant" the administrative law judge was precluded, as a matter of law, from concluding that the decedent's death was explained so as to deprive the claimant widow of the presumption that the decedent's death arose out of and in the course of his employment, citing Standard Accident Insurance Company v. Kiker, 45 Ga.App. 706(5), 165 S.E. 850; Continental Casualty Company v. Adams, 130 Ga.App. 168, 171, 202 S.E.2d 574; Employers Mutual Liability Insurance Company v. Rosenfeld, 130 Ga.App. 251, 252, 202 S.E.2d 678; General Accident Fire & Life Insurance Company v. Sturgis, 136 Ga.App. 260, 262-264, 221 S.E.2d 51. The court held that as a prima facie case was made that the death arose out of employment, the burden shifted to the employer to produce evidence to rebut the presumption, citing General Accident Fire & Life Insurance Company v. Sturgis, 136 Ga.App. 260, 264, 221 S.E.2d 51, supra, and cases cited therein. The superior court also excluded certain exhibits admitted in evidence as inadmissible and held that even if considered by the administrative law judge all of the evidence was insufficient to rebut the presumption to which the claimant widow was entitled; hence, the findings of the administrative law judge as to an assailant (unknown identity and motive) could not deprive the claimant of her right to the presumption above based upon an "unknown motive, intent and target of an unknown assailant." The superior court also held the notice to controvert was legally sufficient and authorized the employer/self-insurer to introduce otherwise admissible evidence in the hearing of the claim as to "all Title 114 questions in connection with the death of the [employee]"; and "sickness [death] benefits" paid the widow under the employee's pension, disability and death benefits plan did not require the Board of Workers' Compensation to give the employer credit under Code Ann. § 114-415 (Ga.L.1978, pp. 2220, 2225).

We granted a discretionary appeal to the employer/self-insurer, and it appeals in Case No. 64532. The claimant cross-appeals in Case No. 64533. Held:

1. Subject to the limitations set forth in Code Ann. § 114-305 (Ga.L.1978, pp. 2220, 2221) claims shall be filed as required by Code Ann. § 114-706 (Ga.L.1978, pp. 2220, 2229), and the board "shall have full authority to hear and determine all questions in respect to such claims." Accordingly, the filing of a notice to controvert as authorized by Code Ann. § 114-705 (Ga.L.1978, pp. 2220, 2227), which requires the giving of "the ground upon which the right to compensation is controverted," does not control the hearing of the claim, wherein the board is authorized "to hear and determine [as in the case sub judice] all questions in respect to such claims." The board is therefore not bound to merely determine whether or not that employer properly controverted this claim for the sole ground listed in the notice to controvert but may determine all issues within the bounds of its rules and regulations and the law. See State Highway Department v. Cooper, 104 Ga.App. 130(1), 121 S.E.2d 258; Zurich Insurance Company v. Robinson, 127 Ga.App. 113(5), 192 S.E.2d 533. See also Raines & Milam v. Milam, 161 Ga.App. 860, 289 S.E.2d 785, holding that Code Ann. § 114-705, supra, is not a statute of limitation, a statutory estoppel or bar to contest issues but one of sanctions. The filing of the original claim controls the actions of the board within its powers. There is no merit in claimant's enumeration of error (cross-appeal Case No. 64533) that only the evidence with reference to "the ground upon which the right of compensation is controverted" might be considered at the hearing.

2. The crux of the case sub judice lies in the issue of the admissibility and probative value of admissions made by the son of the deceased employee to police which he denied to be true on direct examination, although admitting he had made these statements under duress and in violation of his constitutional rights. These admissions although providing contradictory indications as to the identity of the murderer of the employee, consistently show that the causative factor in the employee's death did not arise from his employment.

"An admission by a person not a party to an action however is admissible in evidence only where the party making the admission is the real party in interest, although not a party to the record, or where a party to the record refers another to the third person for information, or where there is an admission by a third person against his interest as to a fact collateral to the main issue between the litigants but essential to the adjudication of the cause. Code §§ 38-404, 38-405. Akin v. Randolph Motors, 95 Ga.App. 841, 848, 99 S.E.2d 358." Lewis v. American Road Insurance Company, 119 Ga.App. 507, 509(1), 167 S.E.2d 729. None of these exceptions to the general rule excluding from evidence the admissions in question is applicable to the case sub judice. We particularly note that Code § 38-405(2) is not applicable as the son's statements bear directly upon the main issue in the case. Lewis v. American Road Insurance Company, 119 Ga.App. 507, 509(1), 167 S.E.2d 729, supra. The admissions in question are not rendered admissible under Code § 38-403 dealing with admissions by a party to the record because at the time of the hearing the son had reached the age of 18 and he was no longer entitled to workers' compensation death benefits under Code § 114-414. Nor are the son's admissions admissible under Code § 38-407 which has been explained to be the incorporation into our law of a theory...