Aetna Casualty Surety Co. v. Nuckolls , 69 Ga. App. 649 ( 1943 )

1. The provision in the Code, § 114-710, that in the event an appeal is filed from the award of the Department of Industrial Relations to the superior court, the department shall, within 30 days of the filing of the same, transmit all papers and documents then on file in their office in the matter, is directory.

2. Where neither the appellant nor his attorney is in any way connected with the delay, so as to prevent the board from transmitting the appeal, the court should not make the appellant or his counsel suffer for such delay.

3. If it be said that appellant should have sought a writ of mandamus, yet the papers having arrived in the superior court on the 31st day instead of the 30the day as provided by Code, § 114-710; this was as soon as the most rapid writ of mandamus could have run its course, and the delay of only one day in the transmission of the appeal papers would not be ground for a dismissal of the appeal. To hold otherwise would be to require the doing of an idle and useless thing.

4. The award of the Department of Industrial Relations is supported by the evidence.

DECIDED JULY 10, 1943. In passing upon the question whether an award was supported by the evidence, that view of the evidence most favorable to the claimant in whose favor the award was rendered, must be taken. The evidence in part disclosed that on Monday, October 27, the deceased husband of the claimant mashed his finger between some pipes, while unloading them from a truck for his employer; that the employer's doctor gave the claimant a tetanus treatment on the same day after the accident. That night he complained of his finger hurting him. The following day he went back to work and worked all day. The next day he went out but did not stay very long, and complained that his arm and shoulder were sore. He thought maybe the shots made them sore. Dr. Butler was called in to see him on Friday and Saturday. On Saturday afternoon he was taken to his home in Camden, S.C., and on that day called in Dr. Rhame, his family doctor. On Sunday evening he was taken to the hospital in Camden. After he arrived in Camden he complained that he was sore all over and ached; his face was also beginning to break out. He still complained that his arm was sore and that his leg was getting sore; that his arm was paining him. His son testified that after they arrived in Camden he saw the finger when it was unbandaged; that "it looked like it was mashed down to the bone and the flesh was torn away." On October 30, it was noticed that there was a pimple in the nose of the plaintiff and the swelling was noticed on Saturday. Claimant's sister-in-law, with whom the deceased had been continuously living for about five weeks prior to the accident, testified, that in so far as she knew he was in good health; that he never complained, and worked every day. Claimant testified that the deceased went to work the last of August or the first of September; that he came home each week-end; that his health was good when he left home, and had been good for the thirty-three years during which she had lived with him; that during her husband's life he was not susceptible to boils or pimples; that when he was brought home, he was a very sick man but that he tried to hide it. "He called attention to his face but it wasn't swollen, for if it had been I would have noticed it. Then he said `Here is my trouble,' and began to unwrap his finger and I saw a terrible finger. It was just crushed and green looking. I did not notice any inflammation. He complained of a pain in his hand and arm all the time until they gave him shots to kill the pain." She noticed pimples on his body. The nurse at the hospital said the pimples showed that it was blood poison. John Murphy testified, that he had seen the deceased three or four times every day from about September 1; that he was working at the same place as the deceased; that the deceased looked like a healthy man; that he worked like a healthy man; and that he had never heard him complain before he had the accident; that the next day after he had been injured, he came back to work and lay around in his car all day; that he said his hand was paining him; that when he told the deceased to go home, he said: "I can sit around here and watch them work. I would be miserable at home with the pain I am in." The witness, Mooney, testified that he roomed with the deceased for a week before he was injured and was rooming with him at the time he was injured; that the deceased was his foreman; that the deceased worked hard; that he had no boils, carbuncles, or swelling on his face until after he mashed his finger; that he did not notice any boil on his face or swelling on his face until Friday afternoon; and that he complained of his arm and finger from the time he was injured until he left to go to his home in Camden, S.C. Dr. Rhame testified that blood poison really killed him. Q. "This man could have died from blood poison that set in in his face?" A. "Yes, sir." Q. "He could have died from blood poison that started in his finger?" A. "Yes, sir." Dr. Rhame further testified that he filled out the death certificate and stated that he died from blood poison that set in from his face; that at the time he made out the death certificate, he did not have a chronology of the case from the time the finger was mashed until death; that he had no exact chronology prior to the time that the deceased was admitted to his hospital; that on the day he was testifying was the first time he had learned the exact date of the injury, the date the pimple appeared, etc. He further testified that "As I know the facts now; injured on Monday, pimples appeared on Thursday, ill all the way in between, pain all the way in between, the face getting very bad when I saw it Saturday, fever, and finally death. [Death occurred on November 16, 1941.] It would appear probable that the initial infection entered the body from the accident; that the unbroken chain of events would from a clinical history, which would be a basis for my final diagnosis from the facts as I know them today." 1. The Code, § 114-710, provides for an appeal from an award of the Department of Industrial Relations, and that "in the event such appeal is filed as hereinbefore provided, the department shall, within 30 days from the filing of the same, cause certified copies of all documents and papers then on file in their office in the matter, and a transcript of all testimony taken therein, to be transmitted with their findings and order or decree to the clerk of the superior court to which the case is appealable."

In the present case the secretary of the Industrial Board certified that the appeal was filed within the time provided by law, but the record shows that the papers transmitted by him did not arrive in the office of the clerk of the superior court until one day after the 30 days had expired. The appellee moved to dismiss the appeal on the ground that the papers had not been transmitted in the time provided in the Code, § 114-710, and cited as authority, Leak v. McDowell, 6 Ga. 264; Duke v.Trippe, 6 Ga. 317, 319; Arnold v. Wells, 6 Ga. 380. He also stated in his brief that he thought the Duke case, supra, was the strongest of the three. The Duke case appears in volume 6 of the Georgia Reports, which was published in 1849. The act of transmitting papers from the Industrial Board to the superior court on appeal under the Code, § 114-710, does not stand on the same footing as certifying and sending up the record and bill of exceptions as was required at the time the Duke case was decided, for at that time the constitution of the State required cases to be disposed of, and finally decided at the first term. Prince's Digest of the Laws of Georgia 1837, p. 909. And Ga. L. 1845, p. 21, provided: "It shall be the duty of the clerk of the superior court below to certify and send up to the Supreme Court a complete transcript of the entire record of the cause below, duly certified under his hand and seal of office, and also the bill of exceptions, within ten days after he shall have received the original notice, with the return of service thereon." And rule 31 of the Supreme Court, passed in order to effectuate the above provision of the constitution and statutes, provided, "no cause (except such as are provided for in the sixth section of the act creating this court) shall be considered as properly brought up, so as to authorize this court to hear and determine the same unless the clerk shall certify and send a complete transcript of the entire record below, together with the bill of exceptions, within ten days after the filing of the original notice of the bill of exceptions, with the return of service thereon." In the Duke case, supra, one of the reasons that the court dismissed the writ of error was: "Because the clerk of the court below did not certify and send up to the supreme court, a transcript of the record and the bill of exceptions, within the time prescribed by law and by the 31st rule of the court."

It seems to us the ruling of the court there was based largely on the fact that such a construction of the rule and statute above stated was necessary in order to prevent the law from being repugnant to the Constitution, and that a different construction could not be enforced without delaying the trial of causes beyond the first term, which would have been against the provision of the Constitution providing that such trials should be had at the first term.

We think that the Code, § 114-710, as to the time of the transmission, is directory to the Department of Industrial Relations, and that as the record does not show the appellant or his attorneys were in any way connected with the delay, so as to prevent the board from transmitting the appeal, they should not be allowed to suffer for failure of the board to transmit the papers within the 30 day period, and that the court should not make the appellants or their counsel suffer. Ford v. Redfearn, 145 Ga. 498, 502 (89 S.E. 611).

If it be said that the appellants should have sought a writ of mandamus, yet the papers having arrived on the 31st day instead of the 30th day, this was as soon as the most rapid writ of mandamus could have run its course. Robison v. Medlock,59 Ga. 598; Pearce v. Renfroe Brothers, 68 Ga. 194, 195;Bower v. Patterson, 116 Ga. 814, 816 (43 S.E. 25).

Thus we do not think that an appeal should be dismissed under the circumstances above stated, and so hold.

2. Our court has held that the question as to the weight and credit to be given to the opinion testimony of a physician is a matter to be determined by the Industrial Board. They may deal with such testimony as they see fit, giving credence to it or not. Thompson v. City of Atlanta, 66 Ga. App. 255, 257 (17 S.E.2d, 761); Ocean Accident Guarantee Corp. v. Lane,64 Ga. App. 149 (12 S.E.2d 413).

Thus, while it appears that the testimony of the physicians was conflicting, we fully recognize the rule "that if, from the same proof, there are two or more plausible explanations or theories of causation as to how an event happened, or what produced it, and if the evidence is without selective application to any one of them, they remain conjectures only, and a finding of fact based on conjectures merely, can not be upheld. On the other hand, if there is evidence which points to any one theory of causation indicating a logical sequence of cause and effect, then there is a juridical basis for a determination as to how the event happened, and a jury would be authorized to select this theory notwithstanding the existence of other plausible theories with or without support in the evidence." Southern GroceryStores Inc. v. Greer, 68 Ga. App. 583, 590 (23 S.E.2d 484). The latter phase of this rule, we think, is applicable to the evidence in this case and authorized the finding by the Industrial Board that the injury to the finger of the claimant's deceased husband was the proximate cause of his death, and that the award of the Industrial Board is supported by the evidence.

We therefore hold that the judgment of the lower court upholding the award allowing compensation is authorized by the evidence.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.