45 Ga. App. 483 | Ga. Ct. App. | 1932
Lead Opinion
J. N. McCarty filed his claim for compensation with the Industrial Commission, against Piedmont Granite Quarries, employer, and American Mutual Liability Insurance Company, insurance carrier. Judge Max Land, commissioner, denied compensation, and in his ruling said: “There are two main issues involved in this claim. First, as to whether the claimant had an accident which arose out of and in the course of his employment, which resulted in hernia; second, as to whether or not his refusal to accept an operation for the hernia was justifiable or reasonable. The second of the above issues was decided by the commissioner in favor of the claimant, as it appeared from expert medical testimony
The sole question in this case is whether the claimant suffered from an injury by accident resulting in hernia compensable under the provisions of section 2 (e) of the workmen’s compensation act (Ga. L. 1920, p. 167; Ga. L. 1922, pp. 185, 190, Michie’s Code, § 3154(2) (e)). The only evidence as to the manner in which the injury was received is contained in claimant’s testimony, which in part is as follows: “We done some blasting, . . and some big rock wedged. . . I had a crowbar, heavy crowbar, trying to prize one out where I could get to it with the hammer, and in prizing on it I felt a pain in there on the right side. . . I had the crowbar in a crack between two rocks, and I twisted it and went with it.” He testified that his feet did not slip and he did not fall, and that while engaged in this work “he was prizing on this crowbar and just felt something hit him in the groin there.” He further testified: “I was on it like this trying to prize it loose. I had tried other ways and failed. . . I did not know whether I wrenched myself, for I was prizing with all the power I had.”
Plaintiffs in error deny “that the hernia resulted from injury by accident arising out of and in the course of claimant’s employment,” and rely largely upon the ruling of this court in the case of Westbrook v. Highview Inc., 42 Ga. App. 834 (157 S. E. 362); and it seems apparent that the commissioner., in refusing compensa
While it does.not seem that decisions (including that of Atlanta Accident Insurance Co. v. Alexander, 104 Ga. 709, 30 S. E. 939, 42 L. R. A. 188), involving accident insurance policies providing benefits for “bodily injuries effected through external, violent and accidental means” have any controlling application in cases such as this, it might be noted in passing that in that ease and cases cited therein accidents were held to have been proved by circumstances no stronger than those appearing in the instant case. While the claimant testified, “I had no accident that I know of,” that statement was clearly only his conclusion, without any probative value. The award of the full commission was properly sustained on appeal.
The foregoing constitutes the unanimous opinion of this court in the case at bar, and that which follows embodies only the views of the writer of this opinion. While the facts of this case differentiate it from the Westbrook case and therefore it is unnecessary to review or overrule that decision, I agree with the view of Judge Jenkins, as expressed in his dissenting opinion in that case, touching the interpretation of section (e) of the workmen’s compensation law. The actual rulings of this court in eases decided both before and after the Westbrook case are in accord with that interpretation. Section (d) of the act provides that “injury” and “personal injury” shall mean “an injury by accident, arising out of and in the course of employment, and shall not include a disease,”
Counsel for plaintiff in error call attention to the fact that hernia may result from various enumerated causes, both accidental and otherwise, and medical testimony in this record bears out that fact. I think the five requirements in section 2(e) were incorporated in the act largely to exclude all kinds of hernia except those arising from “injury” and “personal injury” as defined in section 2(d). This act in view of its beneficent purpose and remedial character, should be construed, where judicial interpretation is necessary, so as to effect its general purpose. Austin Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 S. E. 345).
Judgment affirmed.
Rehearing
ON MOTION EOR REHEARING.
In a motion for a rehearing counsel for plaintiff in error state that “this case was contested for the purpose of securing a ruling on whether a strain occurring during the regular work which produced a hernia was compensable.” It is pointed out that the full commission in its award stated as follows: “In the opinion of the full commission a strain occurring while an employee is engaged in heavy manual labor is in itself' an accident;” and we are requested to decide that abstract question of law or to certify it to the Supreme Court so that any conflict which might exist between the ruling in this case and the ruling in the Westbrook case by the other division of this court might be removed. We are conscious of the fact that it is desirable to have the foregoing question decided uniformly by both divisions of this court, in order to prevent confusion and uncertainty; but the case at bar does not afford an opportunity for so doing. The testimony upon which the full commission based its award was undisputed, and authorized the
The opinion in this case, as originally written, has been changed in some respects since the motion for a rehearing was filed.
Rehearing denied.