Opinion
20573.
ARGUED SEPTEMBER 16, 1959.
DECIDED OCTOBER 13, 1959. REHEARING DENIED NOVEMBER 4, 1959.
Workmen's compensation. Fulton Superior Court. Before Judge Wood. January 22, 1959.
Smith, Field, Doremus Ringel, Richard D. Carr, H. A. Stephens, Jr., for plaintiffs in error.
Joe Salem, contra.
The judgment of the superior court, reversing the denial of compensation by the State Board of Workmen's Compensation, was error.
ARGUED SEPTEMBER 16, 1959 — DECIDED OCTOBER 13, 1959 — REHEARING DENIED NOVEMBER 4, 1959.
The claim for compensation of Essic Mae Scott, as the widow of Alonzo Scott, deceased, was denied by a Deputy Director of the State Board of Workmen's Compensation. On appeal to the full board, the award of the deputy director was affirmed. On appeal to the superior court, the award of the board was reversed and the case remanded, with direction that compensation be awarded. Error was duly assigned on this judgment. The Court of Appeals was evenly divided on the question of affirmance or reversal, and the case was transferred to this court for determination. Constitution of 1945, Art. VI, Sec. II, Par. VIII (Code, Ann., § 2-3708).
It was stated by counsel for the insurer on the hearing before the deputy director, and it was stipulated by counsel for both parties on appeal before the full board, that the sole issue was whether or not the injuries of the deceased arose out of, and in the course of, his employment. The only testimony germane on this issue was that of Robert Drake and Leroy Gaines, and their testimony was summarized by the deputy director as follows:
Robert Drake: "That on July 17, 1957, while working on Victory Road around 11:30 a. m., they were preparing to pour some concrete, but the truck hadn't got there and they scattered about waiting for the truck.
"That he had started to his car and a boy asked for help, called and wanted him to help with Alonzo. He was laying on the ground and was unable to use his arms or legs. They moved him from where he was laying to another spot in the shade. Someone called an ambulance and he was carried to the hospital.
"That he was walking away from where these others were standing and his back was to them at the time whatever happened and he couldn't swear what happened to him. Leroy Gaines called him to come back up there to help him. That was about 80 or 90 feet away from any of them.
"Out of the corner of his eye, it appeared to him that Scott reached and grabbed for Leroy. Appeared to him that he could have been falling. That he couldn't be positive as to what he saw, because he wasn't paying any attention."
Leroy Gaines: "That the concrete truck came up and he stepped across the form to hand a chute on the truck, he stepped back, Alonzo grabbed him around the neck and they started scuffling, both fell on the ground. He told another boy to come help pick Alonzo up, because he said he was hurt. They were just playing. Alonzo was trying to hold him. That he was hurting his ear and they scuffled about two or three minutes. That he fell on top of Alonzo.
"The ground was level. That he and Alonzo never scuffled before, that his back was turned when Alonzo grabbed him around the neck. That he did not recall making the statement which was taken by deposition that Alonzo grabbed him around the neck and they `immediately' fell to the ground.
"That he slept with Alonzo before he got a room of his own. They were very good friends... The occurrence that day was unusual, that's the first time it has ever happened to them...
"After they fell to the ground, Alonzo told him to help him get up. He called another boy to help and then an ambulance was called. That he stayed sick from the time he fell until he died."
With reference to the testimony of Leroy Gaines and Robert Drake, the judge of the superior court in his opinion stated in part:
"A careful reading of the evidence in the case, in my opinion, does not show that Alonzo Scott, the claimant's decedent, was himself engaged in practical joking or horseplay at the time he was injured. It is true that Leroy Gaines, one of his fellow workmen, testified that they were playing, but he further testified that the concrete truck came up and he stepped across the form to hand a chute on the truck, he stepped back and Alonzo grabbed him around the neck and they started scuffling. But at the time Alonzo Scott grabbed him, ... Leroy Gaines' back was turned to Alonzo Scott, and he could not see what happened prior to the time he was grabbed around the neck.
"There is no evidence that Alonzo Scott initiated or was engaged in practical joking or playing, but the most reasonable conclusion to be drawn from what happened was that Alonzo Scott stumbled and while falling, as an instinctive act of self-preservation, grabbed Leroy Gaines around the neck. There was then some scuffling and they fell to the ground.
"Robert Drake testified that as he was walking toward his car to get a sandwich he glanced back and Alonzo Scott seemed to be falling. It is true that he also stated that he was not clear as to what he actually saw. If Leroy Gaines and Robert Drake did not see what happened when Alonzo Scott grabbed Leroy Gaines around the neck, then no one saw what happened prior to the time Alonzo Scott grabbed Leroy Gaines about the neck. But there was introduced in evidence an `emergency case report' as made by Alonzo Scott at the Hughes Spalding Hospital and in this report it is stated: `Patient states that he fell (stumbled) while working today. Patient is quadraplegic. X-ray reveals dislocation of C4 and C5.'" (Italics ours.)
"Injury" and "personal injury" shall mean only injury by accident arising out of and in the course of the employment under the State Workmen's Compensation Act. Code (Ann.) § 114-102. The sole question before the deputy director and the full board of workmen's compensation was whether the deceased was injured in an accident arising out of and in the course of his employment, or whether at the time of his injury he had turned aside and was engaged in sport or "horseplay" with a fellow employee.
The hearing director found from the evidence that, at the time of the deceased's injuries, he was engaged in sport or "horseplay" with a fellow employee, Leroy Gaines, and this finding was affirmed by the full board. If this finding was supported by competent evidence, the claimant could not recover. Ga. Casualty Co. v. Martin, 157 Ga. 909 ( 122 S.E. 881); Maddox v. Travelers Ins. Co., 39 Ga. App. 690 ( 148 S.E. 307); American Mut. Liability Ins. Co. v. Benford, 77 Ga. App. 93, 98 ( 47 S.E.2d 673).
The summary of Leroy Gaines' evidence in the finding of fact by the deputy director is amply supported by the brief of evidence of the hearing appearing in the record, and the testimony of this witness can not be disregarded or set aside solely because the witness at all times stated that, at the time Scott grabbed him around the neck, he had his back turned to Scott, and did not see what happened immediately prior thereto. The witness Leroy Gaines was the only witness who testified as to what happened after Scott grabbed him around the neck, and his statement that they were just playing, and that they scuffled some two or three minutes, would not be subject to the objection that it was a conclusion of the witness, since he testified to several acts that occurred during the period they were playing or scuffling and before they fell.
The able judge of the superior court in his opinion recognizes the rule that the finding of the director and the board, if supported by any competent evidence, is binding on the court. In this connection, see Maryland Casualty Co. v. England, 160 Ga. 810 ( 129 S.E. 75); American Mutual Liability Ins. Co. v. Curry, 187 Ga. 342 ( 200 S.E. 150); Liberty Mut. Ins. Co. v. Blackshear, 197 Ga. 334 ( 28 S.E.2d 860); American Mut. Liability Ins. Co. v. Sisson, 198 Ga. 623 ( 32 S.E.2d 295); Royal Indem. Co. v. Coulter, 213 Ga. 277 ( 98 S.E.2d 899). The judge of the superior court disposes of Leroy Gaines' testimony with the statement that his back was to the deceased, Alonzo Scott, at the time Scott grabbed him around the neck, and that the most reasonable conclusion to be drawn from what happened is that Scott stumbled and while falling, as an instinctive act of self-preservation, grabbed Leroy Gaines around the neck. For support of this conclusion, the court relies upon the statement of Robert Drake, who testified that, as he was walking toward his car, "out of the corner of his eye, it appeared to him that Scott reached and grabbed for Leroy. Appeared to him that he could have been falling. That he couldn't be positive as to what he saw, because he wasn't paying any attention." (From finding of hearing director).
The transcript of the evidence attached to the record shows that Robert Drake testified: "Out of the corner of my eye, it appeared to me that Scott reached and grabbed for Leroy. I don't know what he grabbed for, for support, or not, because I didn't pay no attention. Q. Did he appear to you to have been falling? A. It seemed to me that he could have been falling. Q. And that was when he grabbed Leroy? A. I just — at a glance. I couldn't swear to it."
The emergency-case report was admitted without objection, and was held by the hearing director to be of no probative value. This report is in no way inconsistent with the testimony of Leroy Gaines that both of them stumbled and fell at the time Scott was injured. In fact, it was in this fall that Scott was injured.
This is not a holding that the report was admissible in evidence either as a part of the res gestae under Code § 38-305, or under Code (Ann.) § 38-711 (Ga. L. 1952, p. 177), pertaining to writings and records made in the regular course of business, but in this connection see Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 ( 99 S.E.2d 370); Hawkins v. Jackson, 97 Ga. App. 525 ( 103 S.E.2d 634); Martin v. Baldwin, 215 Ga. 293 ( 110 S.E.2d 344).
The judge of the superior court recognized the rule that the burden was on the claimant to establish by competent evidence her right to compensation. In this connection, see Travelers Ins. Co. v. Faulkner, 63 Ga. App. 438, 439 ( 11 S.E.2d 367); American Mut. Liability Ins. Co. v. Harden, 64 Ga. App. 593 ( 13 S.E.2d 685); Ralph v. Great American Indem. Co., 70 Ga. App. 115, 117 ( 27 S.E.2d 756); Aetna Casualty c. Co. v. Honea, 71 Ga. App. 569 ( 31 S.E.2d 421); Harper v. National Traffic Guard Co., 73 Ga. App. 385 ( 36 S.E.2d 842); Aetna Casualty c. Co. v. Watson, 91 Ga. App. 657 ( 86 S.E.2d 656); Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440, 441 (2) ( 92 S.E.2d 51); Francis v. Liberty Mut. Ins. Co., 95 Ga. App. 225, 226 ( 97 S.E.2d 553). This the claimant failed to do under all the testimony and the record in this case. The finding by the hearing director that Scott was injured when engaged in sport or "horseplay" is amply supported by the uncontradicted and uncontroverted testimony of the witness, Leroy Gaines. Under the "any-evidence" rule, this finding may not be set aside.
The claimant's case otherwise falls within the rule stated by Judge Bell of the Court of Appeals (later Chief Justice of this court) in Savannah River Lumber Co. v. Bush, 37 Ga. App. 539, 541 ( 140 S.E. 899), wherein Judge Bell, speaking for the court, said: "The obligation of the employer under the workmen's compensation act is not that of an absolute insurer, and the burden is upon the claimant to prove a case to which the statute is applicable. Even though it may be true in this case that the decedent's death did in fact arise out of his employment, there is no evidence of the fact, and liability can not be imposed merely because the actual circumstances are incapable of proof. It is more consistent with legal justice that a given case should fail for want of evidence than that it should succeed merely because the truth can not be shown."
Judgment reversed. All the Justices concur, except Wyatt, P. J., and Mobley, J., who dissent.