Opinion Filed July 14, 1931.
Master and Servant — Workmen's Compensation — Review of Awards — Insufficiency of Evidence — Award Vacated Upon Confession of Error.
In a proceeding to review an award made by the State Industrial Commission, upon the alleged ground that there was no competent evidence before the Commission to support the award, and the Attorney General files a confession of error in which he admits that there was no competent evidence to sustain the award, and the record shows that the confession is well taken and that there is no competent evidence upon which to base an award, the same will be set aside.
Original action by George H. Greenan Company et al. for review of an award of the Industrial Commission to Joe Webster Smith. Reversed in part and affirmed in part.
Green Farmer, for petitioners.
J. Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for respondents.
This is an original proceeding in this court to review an order of the State industrial Commission awarding Joe W. Smith compensation for partial loss of hearing of the left car, 15 per cent., and of the right ear, five per cent., the sum of $300, and compensation for disfigurement in the sum of $200, on account of accidental injuries received by respondent, in the course of and growing out of his employment by petitioner George H. Greenan. Thick accidental injury was alleged to have been caused by hot tar being accidentally thrown upon claimant's neck and into his left ear by a fellow employee, and occurred February 16, 1927.
The contention made by petitioners is that there was no competent evidence of loss of hearing of either ear as a result of the accident.
The Attorney General, for respondents, files a confession of error as to the award for partial loss of hearing, in which he says:
"Both doctors who testified in the case were of the opinion that his impaired hearing was in no way connected with the accident, but was caused directly and solely from the catarrhal condition of the eustachian tubes. We find no evidence in the record to sustain the finding of the Industrial Commission that the loss of hearing was caused by the hot tar. Therefore, as to the award of this item we confess error."
It appears from an examination of the record that the confession of error is well taken, and that there is no competent evidence to sustain the award as to partial loss of hearing.
Petitioners in their brief do not complain of the award of $200 for disfigurement.
The order and award of the State Industrial Commission is reversed and set aside as to the award of $300 for partial loss of hearing, and affirmed as to the award of $200 for disfigurement.
LESTER, C. J., and HEFNER, CULLISON, SWINDALL, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., dissents.
Note. — See under (1) 28 R. C. L. p. 829; R. C. L. Perm. Supp. p. 6254.