*1 path plaintiff who traveling on street the right way, jury contradictory under the jury resolved the testimony, in favor of defendant.
The trial not err in court overruling motion new trial. J.,P. and Eberhardt, J., concur.
39620. TRAVELERS INSURANCE COMPANY
et al. v. HUTCHENS. September Rehearing denied 6, Decided
September 25, 1962. S. Mottola, Sanders <& Chas. Van Mottola, error.
Henry Payton, N. contra. Judge. primary this case
Ebbrhardt, *2 hypothetical question volves asked of the medical around a physical witnesses. The the above question related facts set out but the the the also assumed decedent had lifted response hypotheti- the to the One of doctors testified precipitate question cal that the exertion of support sufficient coronary occlusion, opinion is App. v. Thomas, Co. 106 Ga. respect. award U. S. Cas. this (127 169). insists that not employer 441 The was SE2d director proven that decedent lifted die and therefore not the answer. could replies claimant least
The on at occasion the one objection was asked and there was and that no generally the answer harmless. admitting While this true, the here no claimant since in workmen’s rule compensation may admit any cases and all evidence competent but relies presumptively only and valid findings making Liberty of fact the award. (60 App. Ins. v. Meeks, Mut. 81 Ga. SE2d 803-805 800, Fidelity Rittenhouse v. 258); App. U. S. &c. Co., 96 Ga. 407 (1) (100 Corp. Acc. Fire &c. 100 145); Teal, SE2d General v. (111 113). App. (2) Ga. 314 The critical SE2d fact here if exertion, proved by any method, this fact the answer not be used as App. Kuttner 818 Swanson, basis for award. See v. 59 Ga. (2 (5) 230); App. R. 407 Co., Ellis v. SE2d Southern (1) (79 Ben. Health &c. Assn. v. 541); Hickman, SE2d Mutual 380). (111 100 Ga. 361-362 SE2d (2), Claimant relies circumstantial evidence as set out in admits prove employer statement of the exertion. facts to The exertion points this circumstantial one point the circumstances but contends that do Employers Corp. v. required Liab. Assur. by 142). (3) (187 Woodward, SE It contends 53 Ga. have by company instructed facts decedent was physician to by that he had been told assistance and possible. What one conclusion over-exertion makes more than the. we think meaning Woodward, else be the may ever related must be the conclusion to rebut circumstances relied toon relied type of fact that is the specific if incident, category latter Here the support the facts conclusion. one that no in the lathe and (i.e., placed that the die blank relate to there) put the decedent helped testified that he evidence. by specific be established incident to App. 464 71 Ga. &c. Co., Herman Aetna Gas. v. 100). (31 469-470 SE2d proven cir whether the exertion Metropolitan fact. one for trier of
cumstances was Life (5 State, Ins. SE2d Freeman v. 1, 214); Co. Saul, 189 Ga. 7-8 236). In if the director context, circumstances, proved exertion should find findings making *3 then he answer in his use be without compensation would award and an award of Mills Co. v. point. Callaway to on this vital it 7). However, Hurley, proved, since that fact of exertion was find did answer to the he utilize the authorized to and the award question, objected not, thus whether to supported competent evidence. disposition
This of case it unnecessary makes death presumption claimant’s contention relating em employment out of in course of where an arose and place be ployee might reasonably in where found dead he (see expected performance, of to*be in his duties Hartford Cox, Acc. &c. 115 SE2d and 452), rebutted. employer’s presumption that this been contention had it of the admission pass the issue Further, necessary report. autopsy certificate an of a death and J., Bussell, P. concur. J., and Rehearing. Motion On offered urge Counsel for proving of burden of the fact carrying the claimant blank We of the die presence exertion was think that there supervisor was more. The department of the where the employee deceased worked testified that the die blanks were about stored five feet from the lathe, normally lathe operator did have help moving the heavy place and ones into that “all had using to do in it roll it there to the over floor, got piece and how he into the lathe know.” I don’t fellow; A lathe operator testifying as manner in which the operation was carried on in the shop operator said handled all the different types of putting of die them blanks, the, lathe, just onto pick “I them off the floor them lay and in the lathe.” He further testified that the work he did that which the employee, deceased Hutchens, were the same. did The evidence that very little disclosed work had been accom- plished die blank in Hutchens’ lathe, indicating that in place been for more than minutes, about or 40 he suffered his fatal attack at the lathe 1:30 around p.m., having been at work since 8 a.m. director, everybody as else, knew the die blank had
to be place moved into by somebody, part and since it awas operators usual work of the lathe in that shop lift die from the floor onto lathe and since there nothing the evidence to indicate that on which Hutchens gotten the time Working at other any his death had there in there manner, enough authorize that he finding That Hutchens had admonished so. been get lifting heavy blanks that were too him or physician had him to warned over-exertion leads simply judgment no different for was a matter part whether blank would *4 sult in over-exertion whether would it. need
Motion denied. 39579. STATE HIGHWAY DEPARTMENT v. et al.
WILKES