Sanford v. University of Georgia Board of Regents

Court of Appeals of Georgia

Sanford v. University of Georgia Board of Regents

207 S.E.2d 255, 131 Ga. App. 858, 1974 Ga. App. LEXIS 1579

Court of Appeals of Georgia·Decided May 21, 1974·No. 49102·Published·Cited by 3 cases

Opinions

Pannell, Judge.

1. The language of the statute (Code § 114-102; Ga. L. 1920, p. 167, as amended) is: " 'Injury’ and 'personal injury’ shall mean only injury by accident arising out of and in the course of the employment. . .” Under liberal construction, the statute includes injury received in doing an act which the injured employee was employed directly to perform, or an act incidental thereto, reasonably necessary in performance of the act he was employed to perform. If, in performance of an act which he was directly employed to do, or an act reasonably necessary to be done in order to perform the act he was employed to do, the employee receives accidental injury, such injury is compensable. If the act does not come within either of these classifications, the injury is not compensable. United States Fidelity &c. Co. v. Skinner, 188 Ga. 823, 829 (5 SE2d 9).

2. "Under repeated rulings by the Court of Appeals and this court, the commissioner’s findings are conclusive as to facts, where supported by any evidence.” Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 (156 SE 230).

3. The burden is on claimant to show that injury to employee arose, both out of and in the scope of employment; the burden was not carried here. Travelers Ins. Co. v. Faulkner, 63 Ga. App. 438, 439 (11 SE2d 367); Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440 (92 SE2d 51).

4. Where no question of statute of limitation as to time of, or method of service of, notice of claim for compensation within one year of accident is raised at hearing by board, both parties being represented by counsel, the same is waived and cannot be raised for the [859] first time in this court.

Submitted February 7, 1974 Decided May 21, 1974. L. D. Burns, Jr., for appellant. Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Executive Assistant Attorney General, Don A. Langham, Robert S. Bomar, Carl C. Jones, Assistant Attorneys General, for appellee.

5. Pretermitting questions of whether there was a failure to properly raise questions by enumeration of error, all other questions have either been abandoned, or, are rendered moot by the above rulings.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark and Webb, JJ., concur. Stolz, J., concurs specially. Evans, J., dissents.

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Pannell, Judge.

1. The language of the statute (Code § 114-102; Ga. L. 1920, p. 167, as amended) is: " 'Injury’ and 'personal injury’ shall mean only injury by accident arising out of and in the course of the employment. . .” Under liberal construction, the statute includes injury received in doing an act which the injured employee was employed directly to perform, or an act incidental thereto, reasonably necessary in performance of the act he was employed to perform. If, in performance of an act which he was directly employed to do, or an act reasonably necessary to be done in order to perform the act he was employed to do, the employee receives accidental injury, such injury is compensable. If the act does not come within either of these classifications, the injury is not compensable. United States Fidelity &c. Co. v. Skinner, 188 Ga. 823, 829 (5 SE2d 9).

2. "Under repeated rulings by the Court of Appeals and this court, the commissioner’s findings are conclusive as to facts, where supported by any evidence.” Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 (156 SE 230).

3. The burden is on claimant to show that injury to employee arose, both out of and in the scope of employment; the burden was not carried here. Travelers Ins. Co. v. Faulkner, 63 Ga. App. 438, 439 (11 SE2d 367); Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440 (92 SE2d 51).

4. Where no question of statute of limitation as to time of, or method of service of, notice of claim for compensation within one year of accident is raised at hearing by board, both parties being represented by counsel, the same is waived and cannot be raised for the [859] first time in this court.

Submitted February 7, 1974 Decided May 21, 1974. L. D. Burns, Jr., for appellant. Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Executive Assistant Attorney General, Don A. Langham, Robert S. Bomar, Carl C. Jones, Assistant Attorneys General, for appellee.

5. Pretermitting questions of whether there was a failure to properly raise questions by enumeration of error, all other questions have either been abandoned, or, are rendered moot by the above rulings.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Deen, Quillian, Clark and Webb, JJ., concur. Stolz, J., concurs specially. Evans, J., dissents.

Sanford v. University of Georgia Board of Regents, 207 S.E.2d 255, 131 Ga. App. 858, 1974 Ga. App. LEXIS 1579 (Ga. Ct. App. 1974).

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