Sutton v. Macon Gas Co, 22437.

• Decision Date: 11 January 1933
• Docket Number: No. 22437.,22437.
• Citation: 167 S.E. 543,46 Ga.App. 299
• Parties: SUTTON. v. MACON GAS CO.
• Court: Georgia Court of Appeals

46 Ga.App. 299

167 S.E. 543

SUTTON.

v.MACON GAS CO.

No. 22437.

Court of Appeals of Georgia,

Division No. 2.

Jan. 11, 1933.

Rehearing Denied Jan. 31, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Bibb County; Louis L. Brown, Judge.

Proceeding under the Workmen's Compen-sation Act by Sam Sutton, opposed by the Macon Gas Company. An award denying the claim was affirmed by the superior court, and claimant brings error.

Affirmed.

Statement of facts by JENKINS, P. J.: This was an appeal from an award of the Industrial Commission denying a claim for compensation. The award entered by the Industrial Commission was as follows: "The record in this case shows that an agreement was entered into between the employee, Sam Sutton, and the Macon Gas Company, on January 17, 1928, to pay the claimant, Sam Sutton, compensation at the rate of $6.46 a week during disability for an injury alleged to have occurred January 10, 1928, which agreement was approved by the Industrial Commission on February 17, 1928, and compensation was paid for approximately ten weeks. On the grounds of a changed condition, an application was made by James C. Estes, Esq., for a hearing which was had at Macon, Georgia, on June 4, 1928. The Commission on October 18, 1928, made an award denying additional compensation. No appeal was made to the full Commission for a review of this award, and no appeal was taken to the superior court of Bibb county within the time fixed by law. After the award was made and had been quiescent for about two years, Peter J. Nelson, attorney, was called into the case by the claimant on September 5, 1930. He made an investigation of the merits of the case and abandoned it. On October 9th, 1930, a. W. Graves, attorney, was called into the case. He made an investigation of the merits of the case and also abandoned it. On October 24, 1930, R. D. Fea-gin, attorney, was also consulted by the claimant, and after an investigation of the merits of the case, he abandoned it. The case continued to be quiescent until June 27, 1931, when E. N. Freeman, attorney, of Macon, filed a petition asking for a review of the award made on October 28, 1928. On July 1st, 1931, the Commission advised Mr. Freeman that under the law it had no authority to reopen the case for a review of the award. On or about August 19, 1931, Mr. Freeman filed a petition with the Industrial Commission asking that the claimant be awarded compensation to the amount of $5,000, from which should be deducted the sum of $64.00, leaving a balance due of $4,936.00. Accompanying this petition were numerous affidavits. On August 22, 1931, the Commission acknowledged receipt of the petition of August 19, 1931, advising Mr. Freeman that there had been no appeal from the previous award, and, therefore, it is binding on all parties, and that the Commission was without authority under the law to reopen the case on the petition filed. On September 9th, 1931, Mr. Freeman filed a petition with the Industrial Commission for an appeal for a trial by jury in the Superior Court of Bibb County, alleging among other things that fraud had been perpetrated in securing the original award and that the facts found by the Industrial Commission do not support the decree or former judgment, for various reasons which were set out in the petition for appeal. Under the fixed law of the case, as interpreted by both the Court of Appeals and the Supreme Court, the Industrial Commission is without authority to sanction this appeal made to Bibb Superior Court or the appeal to a trial by jury in Bibb Superior Court, both made nearly three years after the previous award. The award made on October 18th, 1928, having not been appealed from within the time provided by law, is binding upon all parties' at interest. The petition for appeal is, therefore, dismissed. All of the Commissioners concur."

From this award, the claimant appealed to the superior court of Bibb county, and the entire record was ordered by the Industrial Commission to be transmitted to the superior court. Upon the hearing in the superior court, the trial judge entered the following judgment: "The appeal on the within case coming on regularly to be heard after the consideration of same and argument of counsel thereon it is considered, ordered, and adjudged that the finding...