Williams v. Maryland Cas. Co.

• Decision Date: 16 July 1942
• Docket Number: 29520.
• Parties: WILLIAMS v. MARYLAND CASUALTY CO. et al.
• Court: Georgia Court of Appeals

21 S.E.2d 478

67 Ga.App. 649

WILLIAMS v. MARYLAND CASUALTY CO. et al.

No. 29520.

Court of Appeals of Georgia, Division No. 2.

July 16, 1942

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 127 S.E.2d 169

Ringel & Ringel, of Brunswick, for plaintiff in error.

T Elton Drake, Edward B. Lovell, and Herman Talmadge, all of Atlanta, for defendant in error.

STEPHENS Presiding Judge.

Julia Williams filed a claim with the Industrial Board against Peoples Water Service Company as employer of her husband Peter Williams, the Maryland Casualty Company, insurance carrier, in which she contended that her husband sustained an accidental injury resulting in his death while in the employ of the water company. The employer and insurance carrier resisted the claim on the ground that (1) the employee did not receive an accidental injury while in the employ of his employer, and (2) there were no dependents. The single director, Hon. Arlie D. Tucker, after hearing evidence rendered an award finding in favor of the claimant. A petition for review was filed with the full board. The board reviewed the evidence before Director Tucker and rendered an award finding that the claimant was the widow of the deceased and his lawful dependent, but further finding "as a matter of fact" and ruling "as a matter of law" that the employee did not sustain an accidental injury while in the

employ of the employer, within the meaning of the workmen's compensation act, Code, § 114-101 et seq. denied compensation, and dismissed the claim. From this finding the claimant appealed to the superior court of Glynn County, which affirmed the award of the board. The claimant excepted.

It is contended that applying the decisions in Brown v Lumbermen's Mutual Casualty Company, 49 Ga.App. 99, 174 S.E. 359, 360, and Lumbermen's Mutual Cas. Co. v. Griggs, 190 Ga. 277, 9 S.E.2d 84, the undisputed facts showed that the claimant's husband sustained an accidental injury while in the employ of the water company which resulted in his death. It appeared that the claimant's husband was employed as a common laborer; that he was with a crew of laborers engaged in working on some pipe that was in a ditch about five feet deep and two or three feet wide; that on September 5, 1940, after sundown, the employee was in the ditch with another employee where they were calking a joint of a pipe; that in order to do this particular work it was necessary to use a hammer and stoop over, so as to drive the lead calking into the joint; and that while so engaged the employee was seen to rise up, wipe the perspiration from his face, and then slump over. He was taken out of the ditch and carried to a hospital, where he died without regaining consciousness. The evidence disclosed that the deceased had high blood pressure, as a consequence of arteriosclerosis or hardening of the arteries and that he also had heart trouble and syphilis of the blood vessels. A physician who had treated him, and who was the only medical witness before the board, testified that during the period covered by his examinations of the deceased he had grown "progressively worse;" that his blood pressure had gone higher, and that his condition was threatening and critical to the extent that something was liable to happen to him at almost any time; that without treatment he expected the deceased to get progressively worse. There was no evidence that the deceased had undergone any treatments after the last examination by this witness. It was contended by the employer and insurance carrier that there was no injury resulting in death within the compensation act, because it did not appear that the deceased had done any unusual work, such as lifting any extraordinarily heavy object, or had unduly exerted himself in any way in performing his work. It was contended, and the board so found, that the evidence failed to show any injury at all, but on the contrary showed that the employee's work had nothing to do with his injury and death, and that such injury and death were the natural and inevitable result of his pre-existing diseased condition, and would have occurred regardless of the employment; that is, that the employee would have been stricken and died at the time even if he had not been at work.

In Brown v. Lumbermens Mutual Casualty Company, supra, the evidence showed that the claimant leaned over to pick up a tool and "something happened in his knee which caused him to suffer pain," and disabled him for a short time thereafter, and this court held that the employee's injury arose out of his employment, and stating as follows "It is true that the employee merely leaned over to pick up a tool; that he did not slip; and that nothing unusual happened, such as some outside physical force which caused the injury. The nature of the injury remains a mystery. There was no medical testimony adduced before the director hearing the case, and nothing to show why in leaning over in the normal way the injury happened. *** The particular injury complained of need not have been foreseen or expected, but it is sufficient if, after the injury, it can be traced to the employment as a contributing cause. *** An injury received while in the course of the employment and in the performance of an act connected with the employment, which injury is unexpected and which may proceed from an unknown cause, or is the unusual effect of a known cause,...