Opinion
35816, 35845.
DECIDED OCTOBER 11, 1955. REHEARING DENIED OCTOBER 24, 1955.
Workmen's Compensation. Before Judge Pharr. Fulton Superior Court. May 24, 1955.
Marshall, Greene Neely, Edgar A. Neely, Jr., for Ruralist Press and Globe Indemnity Co.
Joe Salem, Woods Salem, Leon Epstein, Ben Sweet, for claimants.
1. By entering into an agreement to pay compensation and obtaining the approval of the State Board of Workmen's Compensation, the parties preclude themselves from thereafter contradicting the matters there agreed upon, viz: that there was an accidental injury which arose out of and in the course of employment, and that the injury was compensable.
( a) Where the employee dies as a direct result of the injury referred to in such agreement, the parties are precluded from contending, as against a claim by a dependent of the deceased employee, that the injury did not arise out of and in the course of the employment.
2. There was some evidence to support the findings and award of the State Board of Workmen's Compensation and the Superior Court of Fulton County did not err in affirming such award.
DECIDED OCTOBER 11, 1955 — REHEARING DENIED OCTOBER 24, 1955.
Willie Reid received certain injuries on February 9, 1954, while in the employ of the Ruralist Press, and on March 16, 1954, died as a result of the injuries so received. An agreement as to compensation was entered into prior to the death of Willie Reid which was approved by the State Board of Workmen's Compensation. The insurer made four payments under such agreement between the time the employee was injured and the time he died. After his death Adel Reid and Estella Reid filed separate claims with the State Board of Workmen's Compensation, each alleging that she was the lawful widow of Willie Reid. Adel Reid's claim was based on a ceremonial marriage which took place in 1926, while Estella Reid's claim was based on a common-law marriage begun some 25 years later. In addition to these two claims Virginia Nelson filed a claim as next friend for Violet May Reid who is alleged to be the illegitimate minor offspring of the deceased Willie Reid. On the hearing there was considerable testimony about the marital status of the deceased through the years, including testimony that one alleged common-law marriage, after the ceremonial marriage, ended when the alleged common-law wife died, and a later alleged common-law marriage ended in divorce after the alleged wife shot and wounded the now deceased Willie Reid. All of this is purported to have occurred prior to the alleged common-law marriage between the deceased and Estella Reid. There was also an abundance of testimony concerning the alleged illegitimate minor offspring of the deceased including testimony of his having acknowledged that the child was his and that he contributed to her support. The single director hearing the various claims found that Willie Reid died as the result of an accident and injury which arose out of and in the course of his employment with Ruralist Press, that Adel Reid was his widow, that Violet May Reid was his illegitimate minor offspring, and that he had contributed to her support. Compensation was awarded to both Adel Reid and Violet May Reid. The award of the single director was appealed to the full board by the losing parties, where the findings of the single director were upheld. The losing parties then appealed to the Superior Court of Fulton County where the award of the full board was affirmed. It is to this judgment that the plaintiffs in error except.
The employer and insurer, in case No. 35816, contend that the injuries to the employee which later caused his death did not arise in the course of and out of his employment, and that none of the claimants carried the burden of proving dependency within the meaning of the Workmen's Compensation Act. Estella Reid, in case of No. 35845, contends that she and not Adel Reid is the lawful widow of Willie Reid, and that it was not proven that Violet May Reid was the acknowledged offspring of the deceased Willie Reid.
1. The insurer and employer contend that the deceased Willie Reid did not die as the result of an injury arising out of and in the course of his employment. However, there is uncontradicted evidence that he died as the result of the injuries he received on February 9, 1954, the injuries for which the compensation agreement was entered into, approved by the State Board of Workmen's Compensation, and under which payments were made by the insurer. It was not denied that the agreement was entered into, but it is claimed that even though the agreement might be binding as between them and the deceased, that it is not binding as between them and the dependents of the deceased since the employee's claim is based on his injury and the dependent's claim is based on his death. This contention is without merit because the claim of the employee and the claim of his dependents, should he die as the result of injuries received, are both based on the injury arising out of and in the course of his employment, and compensation is based on the date of the injury in both cases. Code § 114-413 as amended by the Acts of 1939 (Ga. L. 1939, p. 234), and 1949 (Ga. L. 1949, p. 1357). Even though an employee should die as a direct result of injuries compensable under the Workmen's Compensation Act, if his death should occur more than 300 weeks after the date of the injury his dependents cannot collect compensation for his death. See Columbia Casualty Co. v. Whiten, 51 Ga. App. 42 ( 179 S.E. 630). "By entering into the agreement and obtaining the approval of the board, the parties precluded themselves from thereafter contradicting the matters there agreed upon, viz: that there was an accidental injury which arose out of and in the course of the employment, and that the injury was compensable." Hartford Accident c. Co. v. Carroll, 75 Ga. App. 437, 443 ( 43 S.E.2d 722). The agreement in the present case is in the record, the approval of the board is shown thereon, and no contention is made that the employee did not die as the result of injury covered by the agreement. Accordingly, there is no merit in the contention of the employer and insurer that the deceased did not die as a result of an injury arising out of and in the course of his employment.
2. The employer and insurer contend that none of the alleged dependents of the deceased carried the burden of proving that they were entitled to compensation for his death, whereas the alleged dependent Estella Reid contends that the alleged dependents who were awarded compensation failed to cary the burden of proof so as to show that they were entitled to compensation for the death of Willie Reid. The record in this case consists of 334 pages, the majority of which is testimony adduced at the hearing by the State Board of Workmen's Compensation, and it would serve no purpose to attempt to set forth all of this testimony concerning the purported marital status of Willie Reid over a period of years. It will be sufficient to state that there was evidence of a ceremonial marriage between the deceased and Adel Reid which had not been legally terminated by divorce or otherwise prior to the death of Willie Reid on March 16, 1954. There was also uncontradicted evidence in the record that the claimant, Adel Reid, did not abandon the deceased, but that he abandoned her while they were living together as man and wife in the home of his mother. Accordingly, it must be said that there was some evidence to support the award of the full board that Adel Reid was the widow of Willie Reid and entitled to compensation. See, in this connection, Code § 114-414 (a), and Lumbermen's Mutual Cas. Co. v. Allen, 74 Ga. App. 133 ( 38 S.E.2d 841).
As to the contention that the alleged dependent Violet May Reid did not carry the burden of showing that the deceased was her father, and that he had contributed to her support, the witnesses on this question did at times impeach their own testimony; however, there was some evidence on which the board could have based its findings, and where there is any evidence on which the award of the full board could be based this court will not disturb such findings. Fleming v. Fidelity Cas. Co., 89 Ga. App. 405 (1) ( 79 S.E.2d 407).
The judgment of the Superior Court of Fulton County affirming the award of the full board was not error for any reason assigned.
Judgment affirmed in both cases. Felton, C. J., and Quillian, J., concur.