35 Ga. App. 632 | Ga. Ct. App. | 1926
There was no dispute that the death of plaintiff’s husband arose out of and in the course of his employment, the only point of contest being as to whether the wife had lost her right to recover by reason of having voluntarily deserted him. The claimant testified that she was the widow of the deceased employee; that she married him on June 7, 1913, and lived at Gordon’s Mill in Wilkinson County; that later she and her husband moved to his father’s residence in Wilkinson County; that they did not live there long, but later moved back to her father’s home in Macon, Ga.; that she and her husband thereafter moved to McIntyre, Ga., and then back to her husband’s father’s place; that they did not live in her father-in-law’s home, but lived in a tenant-house which had been shortly before occupied by colored people; that she was not living with her husband at the time of his death; that she had been separated from him a little more than three years; that she left her husband for three good reasons, to wit, cruel treatment, habitual drunkenness, and non-support; that her husband repeatedly threatened to do her violence, and on more than one occasion he actually did do her physical violence by beating her; that he was guilty of staying away from home all night and all day on many occasions; that he was under the influence of liquor at various times, and when under the influence of liquor he was very rough, wanting to tear things up, and kill and whip; and that her husband failed to furnish her with the necessities of life. A first cousin of the decedent testified that he knew the decedent well; that he was his cousin; that he saw him nearly every day; that he did not know decedent’s habit as to drinking whisky, because he did not follow him much; that they said lie drank a good deal; that he had that reputation; that he could not say that he ever saw him under the influence of whisky; that he thought he was, but did not personally know it; that he could not tell as to his conduct while drinking, because he did not see him drunk to know it; that he never saw him take a drink; that he did not see him stagger; that he boarded with them a while; that he did not know definitely why she left him; that she never stated her reason for leaving; that
The commissioner found in favor of the defendant, basing his judgment on “the admission of Mrs. Council that she had voluntarily left her husband.” On a review of the case by the full commission on the evidence had before the single commissioner, the full commission concluded its finding as follows: “We do not agree with Commissioner Kilburn in his statement that the claimant admitted she voluntarily abandoned her husband, but in light of the testimony as a whole, the sole commissioner having had the opportunity of hearing • the witnesses testify, having seen their demeanor on the stand and their manner of testifying, we are unwilling to reverse the award made by him; and the award of Commissioner Kilburn is therefore affirmed.” On appeal this judgment of the full commission was reversed by the judge of the superior court.
Judgment affirmed.