Lumbermen's Mutual Casualty Co. v. Allen

38 S.E.2d 841, 74 Ga. App. 133, 1946 Ga. App. LEXIS 474

• Court: Court of Appeals of Georgia
• Decided: July 10, 1946
• Docket: 31152.
• Status: Published

Opinions

Gardner, J.

(a) The only issue in this case is whether the claimant had voluntarily deserted or abandoned her deceased husband, Jonas Allen, under the provisions of the Code, § 114-414 (a). The hearing director found as a matter of fact that the claimant had abandoned or deserted her deceased husband. Upon an appeal to the full board, the full board in a very detailed and carefully written analysis of the record reversed the award of the hearing director and found in favor of the claimant. This award was appealed to the superior court. That court in turn affirmed the award of the full board.

(b) The evidence is somewhat conflicting, bnt after a careful consideration and analysis of the entire record, we are convinced that the full board was authorized, under the evidence and the law, to award compensation to the claimant, Corrie Allen.

(c) The employer and insurance carrier base their contention for reversal wholly on the principle of law that, since the testimony of the claimant is “self-contradictory, vague, or equivocal,” such testimony is to be construed most strongly against the claimant. It is contended that, since there is no other evidence in the record in favor of the claimant, she is not entitled to recover as a matter of law. We disagree with this contention for two reasons: (1) Construing the evidence most strongly against the claimant, the fact-finding body, the full board, were authorized to conclude that the claimant was entitled to recover; and (2) there is other evidence in the record in favor of the claimant, to .the effect that the-deceased abandoned and deserted the claimant and that the claimant did not desert or abandon the deceased. As to the latter proposition, the full board considered and set out somewhat in detail other evidence in favor of the claimant, with relation to the deceased having abandoned the claimant and having lived in a state of illegal relations with Lena Jennings, she'having borne four children by him, and the deceased having gone through a ceremony of marriage with Lena; then later, while the claimant and Lena Avere still alive, the deceased entered into a third ceremony of marriage, the last with a woman by the name of Magnolia Stéphens, in 1940. All of this testimony forms a part of the record, which shows evidence in favor of the claimant to the effect that the deceased abandoned her, and is corroborative of her testimony that the deceased was cruel to her, mistreating her personally by striking her, and cursing her when he was in a drunken condition, and making it impossible for the claimant to live with him or to return to him.

Conceding, but not agreeing with the contention that the claimant’s testimony is self-contradictory, vague, or equivocal to the extent that—when construed most strongly against her—it would not support an award in her behalf, there is evidence in her favor other than that of the claimant. In this view, the award is amply authorized. This being true, the principles of law relied on by the employer and the insurance carrier, as announced in the decisions cited, are not applicable and controlling here. Some of the decisions cited and relied on are: Horne v. Peacock, 122 Ga. 45 (2); Holloway v. Travelers Ins. Co., 50 Ga. App. 87, 89; House v. Parker, 56 Ga. App. 674; Standard Brick & Tile Co. v. Posey, 56 Ga. App. 686, and many others. This court held in Rogers v. Woods, 66 Ga. App. 195, 197 (17 S. E. 2d, 283): “The rule that a party’s testimony must be construed against him is not applicable to this ease because there was other testimony upon which the jury might have based its verdict.” It is well established that “the findings of fact made by the directors within their power shall, in the absence of fraud, be conclusive.” Code, § 114-710.

(d) There is one other phase of the record, which we deem pertinent to discuss. That phase concerns the evidence relative to a statement which the agent of the insurance carrier procured from the claimant. It must be kept in mind that this statement was an extrajudicial document. It was introduced in evidence, but there is little of its contents mentioned except, “We did not have any particular reason for separating, but we just quit.” In addition to the findings of fact which we have copied from the award of the full board, we have set forth certain questions and answers from the record of testimony. It will be noted that the full board were authorized, to conclude that the claimant did not intend to sign a statement to such effect. This phase involved a question of credibility. In view of the whole record, the fact-finding board were authorized and justified in reaching the conclusion that the deceased, Jonas Allen, abandoned the claimant and that she did not abandon him. This is true notwithstanding the above-quoted phrase in the statement which the claimant denies having made, as set out in the statement obtained from her by the agent of the insurance carrier. The agent could have misunderstood her, or she could have,misunderstood him. The full board could well have found this to be true without imputing bad faith to the agent of the insurance carrier. The judgment of the superior court in affirming the award is affirmed.

Judgment affirmed.

Sutton, P. J., MacIntyre and Parker, JJ., concur, and Broyles, G. J., and Felton, J., dissent.