U.S. Fidelity & Guaranty Co. v. Landen

Decision Date20 February 1956
Docket NumberNo. 36050,No. 2,36050,2
Citation93 Ga.App. 349,91 S.E.2d 857
CourtGeorgia Court of Appeals
PartiesUNITED STATES FIDELITY & GUARANTY COMPANY et al. v. Juanita C. LANDEN

Syllabus by the Court.

The superior court did not err in affirming the award of the State Board of Workmen's Compensation in favor of the plaintiff.

Mrs. Juanita Cooper Landen filed a claim with the State Board of Workmen's Compensation for benefits for herself and her minor children because of the death of her husband, James Landen, due to injury arising out of and in the course of his employment with Edgar L. Smith Construction Company. The deputy director entered an award in favor of the plaintiff. On appeal to the full board by the employer and insurance carrier, the full board sustained and affirmed the finding of facts and award of the deputy director, whereupon the insurance carrier and employer appealed the award to the Superior Court of Whitfield County where the award of the State Board of Workmen's Compensation was sustained. It is to this order that exceptions were filed, and the case is here for review.

Briefly, the facts show that on October 30th, 1954, while employed by the Edgar L .Smith Construction Company as a painter's helper, the deceased was engaged in waxing panel walls; that the work done by the deceased consisted of brushing down a wall which the painters were preparing to wax or shellac; that this work consisted of reaching up and bending over and going up and down a ladder; that after having done this work from approximately 8 a. m. until about 10:30 a. m. the deceased complained of a severe pain in his chest, whereupon he sat down upon the floor and held himself with both arms around his chest; that he was sent by ambulance to the local hospital where he was examined, and it was determined that he suffered a spontaneous pneumothorax; that he was advised that his family physician should be called; that he was rendered first aid at the local hospital and was sent direct to the hospital at Fort Oglethorpe for observation and treatment, where the diagnosis was confirmed and that he suffered the collapse of one lung; that he remained in the hospital until November 4, 1954, at which time he was dismissed; that he left his hospital room, went to the business office of the hospital to pay his hospital bill, after which he returned to his hospital room; that upon his return to the hospital room he collapsed and died.

Doctor McGuire testified that in his opinion the death of the deceased was connected with the pneumothorax for which he was hospitalized and that the physical exertion of reaching up and down and bending over would be sufficient to cause such an injury and that such an injury was more likely to result from exertion than from no exertion. Doctor L. A. Williams testified substantially the same as Doctor McGuire, i. e.: 'That in his opinion the cause of death of claimant's husband would be related to the pneumothorax for which he was admitted to the hospital, and that the exertion of performing the duties which Mr. Landen was performing of bending down and reaching up while wiping down walls was sufficient to precipitate the spontaneous pneumothorax for which he was admitted to the hospital'.

Hardin & McCamy, Dalton, for plaintiff in error.

Pittman, Kinney & Pope, Dalton for defendant in error.

GARDNER, Presiding Judge.

Counsel for the defendants argue that the facts found by the State Board of Workmen's Compensation do not support the award and order and that there is not any competent evidence in the record to warrant and sustain the award and order of the State Board of Workmen's Compensation. It is true that in order for an injury and death to be compensable, the death must result from an accident arising out of and in the course of the employment, or must be a result thereof. It is also true that the burden of proof is on the claimant to show that the death so resulted. See Johnson v. Firemen's Fund Indem. Co., 79 Ga.App. 187(1), 53 S.E.2d 204; Liberty Mut. Ins. Co. v. Harden, 85 Ga.App. 830(2), 70 S.E.2d 89, and Lockheed Aircraft Corporation v. Marks, 88 Ga.App. 167, 76 S.E.2d 507. Counsel for the defendants also argue that where the evidence is consistent with either of two opposing theories, the evidence proves neither of the theories and cites in support thereof the following cases: Taylor v. State, 44 Ga.App. 387, 417, 161 S.E. 793: Federal Reserve Bank of Atlanta v. Haynie, 46...

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