Knight v. Fulton Industries

181 S.E.2d 691, 123 Ga. App. 538, 1971 Ga. App. LEXIS 1292

• Court: Court of Appeals of Georgia
• Decided: March 10, 1971
• Docket: 45553
• Status: Published

Opinions

Evans, Judge.

Upon consideration of the motion for rehearing, a majority of this court voted to grant the motion, vacate the judgment of affirmance, and reverse the judgment.

It appears that the award of the State Board of Workmen’s Compensation is premised upon an erroneous finding of fact. Among other things, the findings of fact by the board were: "His (Knight’s) employment consisted of cutting leather straps and helping to install them on certain machinery of the employer. The record reveals that neither of the operations could be considered to be strenuous activity or of a nature to cause undue exertion on the part of the deceased. We further find that the deceased mode of locomotion between the two floors on which he worked was by elevator. The board further finds that ninety to ninety-five percent of the claimant’s work was of a sedentary nature.” (Emphasis supplied.)

The evidence before the board by a fellow worker was uncontradicted to the effect that Clifford R. Knight, the employee, walked everywhere his fellow employee walked; that there were two modes of locomotion, an elevator between floors to go from the belt shop to the picker room, and a flight of stairs from the picker room to the opening room, and that Knight walked up and down these stairs at least four times on the day of and shortly before his death. He had a long standing history of coronary disease and enphysema and had been for some time receiving active medical treatment for these conditions. It appears from a reading of the evidence of the witness McCord that the board failed to credit the testimony of McCord as to the working conditions and distances involved. This testimony is somewhat vague and conflicting due to the witness’s misunderstanding of the questions asked of him, but a study of this testimony discloses that Knight and McCord worked together in three separate locations, i.e., (1) the belt shop on the ground floor; (2) the picker shop located one floor up by elevator and approximately a city block from the elevator; and (3) the opening room down a flight of stairs from the picker room. (It cannot be ascertained from the testimony whether the belt shop and the opening room are on the same floor). The findings of fact of the board are completely erroneous "that the deceased mode of locomotion between the floors on which he worked was by elevator.” (See Record, pp. 35, 36, 96, 97, 99, 102 and 120). Thus, the erroneous findings of fact to the effect that only an elevator was used for transportation between the two floors, and that Knight’s employment was of a sedentary nature, and that his death took place following a short period of rest may well have influenced the board’s finding against claimant. Be that as it may, where the findings of fact are not supported by the evidence, the award should be reversed. See Code § 114-707; Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (1) (119 SE 39); Atlanta Transit System v. Harcourt, 94 Ga. App. 503 (95 SE2d 41); Ideal Mut. Ins. Co. v. Ray, 92 Ga. App. 273, 276 (88 SE2d 428). The award must be supported by the findings of fact. The findings of fact must be based on evidence. See Lathem v. Hartford Acc. &c. Co., 60 Ga. (3 SE2d 916); Woodruff v. American Mut. Liab. Ins. Co., 67 Ga. App. 554, 560 (21 SE2d 298); U. S. Fidel. Sec. Co. v. Brown, 68 Ga. App. 706 (3) (23 SE2d 443). The case should be recommitted to the board for it to render a proper finding of fact on which to base its award.

Judgment reversed.

Bell, C. J., Pannell, Deen, Quillian and Whitman, JJ., concur. Jordan, P. J., Hall, P. J., and Eberhardt, J., dissent.