Travelers Ins. Co. v. Hutchens

Decision Date06 September 1962
Docket NumberNo. 39620,No. 3,39620,3
Citation106 Ga.App. 631,127 S.E.2d 712
PartiesTRAVELERS INSURANCE CO. et al. v. Kathleen HUTCHENS. . Division
CourtGeorgia Court of Appeals

Syllabus by the Court

Where reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established.

This is a workmen's compensation heart case. The decedent went to work apparently in good health. He worked during the morning and until about 1:30 p. m. when he fell out and died immediately. Decedent was a lathe operator in the machine shop where he tooled die blanks of steel to the desired size. The dies to be tooled ranged in weight from 3 to 125 pounds, but the heaviest dies were used no oftener than once in a fortnight. The dies were stored some five feet off the floor to be put into the lathe. At the time of his death there was a die in his lathe weighing between 100 and 125 pounds, on which work had been done requiring no more than thirty minutes. No one saw the decedent lift the die and there was no testimony that anyone had helped him in getting it placed in the lathe. Decedent had been instructed to get help in moving anything that was too heavy for him and had been warned by his doctor to avoid over-exertion.

Compensation was awarded the claimant and appeal was taken to the superior court, where the award was affirmed.

Sanders & Mottola, Charles Van S. Mottola, Newnan, for plaintiff in error.

Henry N. Payton, Newnan, for defendant in error.

EBERHARDT, Judge.

The primary question in this case revolves around a hypothetical question asked of the medical witnesses. The question related the physical facts set out above but also assumed that the decedent had lifted the die to the lathe. One of the doctors testified in response to the hypothetical question that the exertion of lifting the did did precipitate a coronary occlusion which opinion is sufficient to support the award in this respect. United States Cas. Co. v. Thomas, 106 Ga.App. 441, 127 S.E.2d 169. The employer insists that it was not proven that the decedent lifted the die and that the director therefore could not consider the answer.

The claimant replies that on at least one occasion the question was asked and there was no objection and that any error in admitting the answer was harmless. While this is generally true, the rule is of no help to claimant here since in workmen's compensation cases the director may admit any and all evidence but presumptively relies only on competent and valid evidence in making his findings of 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 here is the exertion, and if this fact was not proved by any method, the answer to the hypothetical question could not be used as the basis for the award. See Kuttner v. Swanson, 59 Ga.App. 818(5), 2 S.E.2d 230; Ellis v. Southern R. Co., 89 Ga.App. 407(1), 79 S.E.2d 541; Mutual Ben. Health & Accident Ass'n of Omaha v. Hickman, 100 Ga.App. 348(2), 361-362, 111 S.E.2d 380.

Claimant relies on circumstantial evidence as set out in the statement of facts to prove the exertion. The employer admits that this circumstantial evidence points to the fact of exertion but contends that the circumstances do not point to only one conclusion, as required by Employers Liab. Assur. Corp. v. Woodward, 53 Ga.App. 778(3), 187 S.E. 142. It contends that the facts that decedent was instructed by the company to have assistance and that he had been told by his physician to avoid over-exertion makes more than one conclusion possible. Whatever else may be the meaning of Woodward, we think that the circumstances relied on to rebut the conclusion must be related to the specific incident, if that is the type of fact relied on to support the conclusion. Here the facts in the latter category (i. e., that the die blank was placed in the lathe and that no one testified that he helped the decedent put it there) relate to the specific incident to be established by circumstantial evidence. See Herman...

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10 cases
  • Bowers v. State, 59455
    • United States
    • Georgia Court of Appeals
    • March 13, 1980
    ...to the question only if it has first determined that the assumed fact has been satisfactorily established. See Travelers Ins. Co. v. Hutchens, 106 Ga.App. 631, 127 S.E.2d 712; Ralston Purina Co. v. Hagood, 124 Ga.App. 226, 229, 183 S.E.2d 492. Paraphrasing the hypothetical question that if ......
  • Cox v. Allen
    • United States
    • Georgia Court of Appeals
    • June 20, 2002
    ...737, 738(1), 297 S.E.2d 365 (1982); Bowers v. State, 153 Ga.App. 894, 895(1), 267 S.E.2d 309 (1980); Travelers Ins. Co. v. Hutchens, 106 Ga.App. 631, 632-633, 127 S.E.2d 712 (1962). If an expert's opinion is, in fact, based in part upon a fact not in evidence, although in the hypothetical, ......
  • Hyles v. Cockrill
    • United States
    • Georgia Court of Appeals
    • October 13, 1983
    ...to the question only if it has first determined that the assumed fact has been satisfactorily established." Travelers Ins. Co. v. Hutchens, 106 Ga.App. 631, 127 S.E.2d 712 (1962). It is only for the court to decide "whether a conclusion assumed is at least supported by the circumstantial ev......
  • Stoneridge Properties, Inc. v. Kuper
    • United States
    • Georgia Court of Appeals
    • March 21, 1986
    ...proven to establish the fact contained in the hypothetical question is an issue for the trier of fact. Travelers Ins. Co. v. Hutchens, 106 Ga.App. 631, 633, 127 S.E.2d 712. The question posed was a proper one for expert opinion, and there was sufficient evidence and circumstances in the rec......
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