United States Fid. & v. Christian, (No. 16878.)

• Decision Date: 20 April 1926
• Docket Number: (No. 16878.)
• Citation: United States Fid. & v. Christian, 133 S.E. 639, 35 Ga.App. 326 (Ga. App. 1926)
• Court: Georgia Court of Appeals
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CHRISTIAN.

35 Ga.App. 326

133 S.E. 639

UNITED STATES FIDELITY &GUARANTY CO.

v.CHRISTIAN.

(No. 16878.)

Court of Appeals of Georgia, Division No. 2.

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.

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.

Mrs. M. Li. Christian filed a claim before the Industrial Commission of Georgia against Puritan Chemical Company, as the employer of F. A. Christian, her deceased husband, and against the United States Fidelity & Guaranty Company, the insurance carrier, for compensation under the Georgia Workmen's Compensation Act, on account of the death of F. A. Christian from an alleged injury. The claim was tried first before Dr. George A. Paulk, sole commissioner, who rendered a decision adverse to the claimant on April 14, 1925. The claimant, on April 21, 1925, filed an application for a review before the full commission, and on July 28, 1925, the full commission rendered an ' award in her favor, thereby reversing the decision of the sole commissioner. On July 31, 1925, the commission entered an order allowing to the losing parties an appeal to the superior court of Fulton county. On September 29, 1925, the award of the full commission was affirmed by the superior court. The plaintiffs in error except to this judgment'

The record of the hearing before the sole commissioner shows that Mr. George G. Reid appeared for the insurer. In a preliminary statement before the commissioner, Mr. Reid said:

"The first we knew of this accident was when Mr. Christian was sent to our office by the Puritan Chemical Company, of which we are the insurance carriers. We sent him immediately to Dr. Hames, and he was treated by Dr. Hames. We paid him compensation in the amount of $29.35, at the rate of $15 per week, as he was earning more than $30 per week. * * * The Puritan Chemical Company have a manufacturing establishment on Peters street, and they were making alterations, and engaged several carpenters for just a day or two—what we term 'casual employees'—and Mr. Christian was en gaged on an hourly basis, and he worked a short while, and then the accident occurred.

"By the Commissioner: You don't admit that the accident grew out of and in the course of employment?

"By Mr. Reid: No, sir. My one contention is that it did not arise out of and in the course of employment. We admit liability for the accident, but deny that the death was the result of the accident; it had no connection with it. We waived that point on the temporary total."

There was ample evidence to authorize the finding that the death of plaintiffs husband was directly occasioned by the injury. No question was made before the sole commissioner or the full commission as to the lack Of jurisdiction of the sole commissioner to hear the claim in a county other than that in which the accident occurred, but it appears from the bill of exceptions that this question was raised in the superior court. No question was made before the full commission as to failure to make within seven days the application for review before the full commission, but it appears from the bill of exceptions that this question was raised in the superior court, although the copy of the appeal as embodied in the record itself indicates that the "application for review was made to the commission within" the time prescribed.

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

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

Syllabus Opinion by the Court.

JENKINS, P. J. [1-3] 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, pro-vided 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. [5] 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...