26 S.E.2d 473 | Ga. Ct. App. | 1943
1. The provision in the Code, § 114-710, that in the event an appeal is filed from the award of the Department of Industrial Relations to the superior court, the department shall, within 30 days of the filing of the same, transmit all papers and documents then on file in their office in the matter, is directory.
2. Where neither the appellant nor his attorney is in any way connected with the delay, so as to prevent the board from transmitting the appeal, the court should not make the appellant or his counsel suffer for such delay.
3. If it be said that appellant should have sought a writ of mandamus, yet the papers having arrived in the superior court on the 31st day instead of the 30the day as provided by Code, § 114-710; this was as soon as the most rapid writ of mandamus could have run its course, and the delay of only one day in the transmission of the appeal papers would not be ground for a dismissal of the appeal. To hold otherwise would be to require the doing of an idle and useless thing.
4. The award of the Department of Industrial Relations is supported by the evidence.
In the present case the secretary of the Industrial Board certified that the appeal was filed within the time provided by law, but the record shows that the papers transmitted by him did not arrive in the office of the clerk of the superior court until one day after the 30 days had expired. The appellee moved to dismiss the appeal on the ground that the papers had not been transmitted in the time provided in the Code, § 114-710, and cited as authority, Leak v. McDowell,
It seems to us the ruling of the court there was based largely on the fact that such a construction of the rule and statute above stated was necessary in order to prevent the law from being repugnant to the Constitution, and that a different construction could not be enforced without delaying the trial of causes beyond the first term, which would have been against the provision of the Constitution providing that such trials should be had at the first term.
We think that the Code, § 114-710, as to the time of the transmission, is directory to the Department of Industrial Relations, and that as the record does not show the appellant or his attorneys were in any way connected with the delay, so as to prevent the *653
board from transmitting the appeal, they should not be allowed to suffer for failure of the board to transmit the papers within the 30 day period, and that the court should not make the appellants or their counsel suffer. Ford v. Redfearn,
If it be said that the appellants should have sought a writ of mandamus, yet the papers having arrived on the 31st day instead of the 30th day, this was as soon as the most rapid writ of mandamus could have run its course. Robison v. Medlock,
Thus we do not think that an appeal should be dismissed under the circumstances above stated, and so hold.
2. Our court has held that the question as to the weight and credit to be given to the opinion testimony of a physician is a matter to be determined by the Industrial Board. They may deal with such testimony as they see fit, giving credence to it or not. Thompson v. City of Atlanta,
Thus, while it appears that the testimony of the physicians was conflicting, we fully recognize the rule "that if, from the same proof, there are two or more plausible explanations or theories of causation as to how an event happened, or what produced it, and if the evidence is without selective application to any one of them, they remain conjectures only, and a finding of fact based on conjectures merely, can not be upheld. On the other hand, if there is evidence which points to any one theory of causation indicating a logical sequence of cause and effect, then there is a juridical basis for a determination as to how the event happened, and a jury would be authorized to select this theory notwithstanding the existence of other plausible theories with or without support in the evidence." Southern GroceryStores Inc. v. Greer,
We therefore hold that the judgment of the lower court upholding the award allowing compensation is authorized by the evidence.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.