United States Cas. Co. v. Kelly
| Decision Date | 20 November 1948 |
| Docket Number | 32169. |
| Citation | 50 S.E.2d 238,78 Ga.App. 112 |
| Parties | UNITED STATES CASUALTY CO. et al. v. KELLY. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 3, 1948.
Syllabus by the Court.
The award by the Deputy Director in favor of the claimant approved by the full Board was authorized by the evidence and the Superior Court did not err in refusing to set it aside.
Miller & Head and Frank Lawson, all of Atlanta, for plaintiffs in error.
Sam J. Welsch, of Marietta, for defendant in error.
Flottie B. Kelly, as the widow of Homer L. Kelly, filed a claim for compensation for the death of her husband. The Deputy Director awarded compensation; his award was approved by the Board and that ruling was affirmed on appeal by the Superior Court. While the employer's attorney did not formally admit on the hearing that the deceased suffered an accidental injury arising out of and in the course of his employment, the record shows that the only real dispute in the case was whether the injury sustained bore any causal relation to the death which ensued some two months and eleven days thereafter, and for all practical purposes the fact of the injury seems to have been conceded.
The deceased was employed in digging ditches and on November 18, 1946, the bank of a ditch caved in around his hips breaking his left ischium and left hip joint. The deceased was taken to a hospital and dismissed the same day after treatment. The following day the doctor employed by the compensation insurance carrier, Dr. Rufus Askew, examined the deceased at his home and decided that he should be hospitalized again. The deceased was returned to a hospital and remained there from that day until just before Christmas, when he was dismissed and returned home, walking with the aid of crutches. The deceased continued on cruches until about the middle of January when he was able to replace his crutches with a cane. On the morning of January 29, 1947, he was found dead in Fulton County, Georgia, at a spot where he might reasonably have been on his way from his home to the hospital. An autopsy was performed and, as testified to by the doctor who performed it, it showed that the deceased was suffering from a diseased heart condition, and that the immediate cause of death was a ruptured aorta.
It would serve no purpose here to set forth extensively the evidence adduced upon the hearing. It is sufficient to say that Dr. Askew, who examined the deceased the day after he was injured, testified that he found evidence of a diseased and enlarged heart with a 'second aortic sound' when he first examined him; that such an injury as the deceased received would aggravate such a heart condition, especially during the period of pain and suffering, but he thought that such aggravation would not have continued two months, and that the rest which the deceased necessarily underwent in the treatment of his injuries would have been beneficial to the heart condition; but that if the deceased continued to suffer pain from the injury up until his death his opinion would be otherwise; that at the time of his death the deceased was still totally disabled, but would have been able to return to his work in two or three weeks and that treatment for the injuries would have continued some 8 or 10 weeks.
The only witness for the claimant besides herself was a man in whose house the deceased lived at the time of the injury and until his death. He testified that the deceased continued to grumble and complain about his hip up until the last time the witness saw him before he died, and that on the last night the deceased spent at his house, approximately 24 hours before he was found dead, the deceased was apparently still suffering pain from his injury and had to be assisted in turning over in bed. Dr. George F. Klugh, who performed the autopsy on the deceased, testified as a witness for the defendant. His testimony consisted of a narrative of his findings on the autopsy and of answers to numerous questions about his opinion as to whether the injury could have aggravated the heart condition. While Dr. Klugh's testimony relating to the real issue may be said to have been equivocal, wavering and uncertain at many points, he said finally ...
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