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

• Court: Georgia Court of Appeals
• Writing for the Court: JENKINS, P.J. JENKINS, P.J.
• Citation: U.S. Fidelity & Guaranty Co. v. Christian, 133 S.E. 639, 35 Ga.App. 326 (Ga. App. 1926)
• Decision Date: 20 April 1926
• Docket Number: 16878.
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CHRISTIAN.

133 S.E. 639

35 Ga.App. 326

UNITED STATES FIDELITY & GUARANTY CO. v. CHRISTIAN.

No. 16878.

Court of Appeals of Georgia, Second Division

April 20, 1926

Rehearing Denied June 15, 1926.

Syllabus by Editorial Staff.

On application for award to the Industrial Commission, questions not raised at hearing by one commissioner, or on appeal to full commission, cannot be urged for the first time on appeal to the superior court.

Where question as to venue, in which sole commissioner heard case was for first time raised in superior court on appeal, the Supreme Court will treat it as having been waived.

Question as to character of employment not having been raised at hearing before Industrial Commission is waived.

On review of award of Industrial Commission under Laws 1920, p 199, commissioner's findings of fact are, in absence of fraud, conclusive, if supported by evidence.

On Motion for Rehearing.

Where findings of the Industrial Commission in awarding compensation were complete on the issue whether decedent died as result of accidental injury, which insurer admitted to be only issue involved, they cannot be attacked for failure to include finding that injury arose out of and in course of employment.

Where question as to venue in which a single commissioner heard compensation case was urged for first time in the superior court, it will be presumed that venue was agreed to between the parties under Workmen's Compensation Act, § 56.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. M. L Christian, claimant, for death of F. A. Christian, her husband, opposed by the Puritan Chemical Company, the employer, and the United States Fidelity & Guaranty Company, the insurance carrier. The Industrial Commission reversed the decision of a sole commissioner denying award, and awarded compensation, which was affirmed on appeal to the superior court, and the insurance carrier brings error. Affirmed.

Bryan & Middlebrooks, of Atlanta, for plaintiff in error.

J. I. Hynds and Hugh Howell, both of Atlanta, for defendant in error.

Syllabus OPINION.

JENKINS, P.J.

1. "Where an application for an award of damages is made to the Industrial Commission of Georgia, questions not raised when the case is heard by one of the commissioners, or on appeal to the full commission, cannot be raised for the first time on appeal to the superior court." Integrity Mutual Casualty Co. v. Hankins, 33 Ga.App. 339, 26 S.E. 554. Accordingly, where the commissioner has jurisdiction of the subject-matter and the question as to the venue in which he heard the case is for the first time raised in the superior court, on appeal of the parties raising the question, this court will treat the question as having been waived by them, and will not pass upon it. The same rule applies as to the character of employment, where liability for the accident was admitted before the commission and the court, and the sole contention made was whether death resulted therefrom.

2. The objection that the appeal to the full commission was not taken within the time prescribed by law is not sustained by the record.

3. "Upon a review of an award made by the Industrial Commission under the provisions of the Georgia Workmen's Compensation Act, the commission's findings of fact are, in the absence of fraud, conclusive, provided there is any evidence to support the award. Ga. L. 1920, p. 199. With respect to the sufficiency of the evidence to support it, such an award stands in this court upon the same footing as the verdict of a jury approved by the trial judge in other cases."' Integrity Mutual Casualty Co. v. Hankins, supra; Maryland Casualty Co. v. England, 160 Ga. 810 (1), 129 S.E. 75. The evidence submitted in each of the hearings fully authorized a finding that the death of the plaintiff's husband was occasioned by an injury arising out of and in the course of the decedent's employment.

Judgment affirmed.

STEPHENS and BELL, JJ., concur.

On Motion for Rehearing.

JENKINS P.J.

The plaintiff in error filed a motion for rehearing in this case, contending that this court overlooked the fact that the award of the full commission, complained of by the movant, fails to make a definite finding of fact that the decedent died as a result of an accidental injury arising out of and in the course of his employment, covered by the insurance. The award of the full commission is as follows:

"This case came before the full commission on appeal from the award of Commissioner Paulk, made on April 14, 1925. F. A. Christian, the employee, was injured on December 9, 1924, from which he was disabled for several days. The insurance carrier paid compensation in the sum of $29.35, covering the period of disability. Mr. Christian then returned to work for a short while, and died on January 14, 1925. Commissioner Paulk stated in his award that the medical testimony was very indefinite as to showing that the death was the result of the accident, and found that the death was not the result of the accident. The commission cannot agree with his findings. A review of the evidence shows that F. A. Christian died from intestinal trouble, and, from the evidence in the case, there is no question in the mind of the commission but that the injury received by Mr. Christian initiated and

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