Hembree v. Chevrolet Motor Division

108 Ga. App. 113 (1963)

131 S.E.2d 859

HEMBREE v. CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION.

40202.

Court of Appeals of Georgia.

Decided June 26, 1963.

Rich, Bass & Kidd, Charles T. Bass, for plaintiff in error.

King & Spalding, William H. Izlar, Jr., contra.

*115 CARLISLE, Presiding Judge.

1. "In the absence of fraud, findings of fact made by the director and approved on appeal by the full board are binding on the court if there is any evidence to support them; and, where no error of law appears, such findings will not be disturbed on appeal." Fleming v. Fidelity &c. Co., 89 Ga. App. 405 (1) (79 SE2d 407). Garrett v. Employers Mutual Liab. Ins. Co., 105 Ga. App. 308 (1) (124 SE2d 450). The evidence authorized the finding that the claimant suffered no injury and disability by reason of his alleged fall.

2. At the hearing, the record was left open 30 days for the purpose of completing medical testimony, and the depositions of Dr. Marvin A. Mitchell, entitled in the cause, were taken in behalf of claimant after the hearing under the following stipulation: "All objections to the questions, with the exception *114 to form, will be noted at this time, however, the deponent will answer the question asked and the director will pass upon the legitimacy of the question at the time the director or deputy director reads the deposition," and the depositions of Dr. Floyd W. Morgan, entitled in the cause, were taken in behalf of the claimant after the hearing under the following stipulation: "That objections would be made for the record with rulings thereon to be made by the deputy director, before whom the case was heard, at the time she reads the testimony." Attorney for claimant also dictated for the stipulation the following: "The form of the question will be passed on by the deputy director when she reads the deposition . . . it is to be used in evidence for the claimant in the Workmen's Compensation Board." While it does not appear that these depositions were formally introduced in evidence, it appears that they were taken by the claimant for the purpose of being submitted to the director and to the board when taken, and that it was contemplated between the parties acting by and through their attorneys that the depositions would be used as evidence in the case and that they were transmitted to the board. Under these circumstances the director and the board properly considered the depositions as evidence in the case, Fleming v. Fidelity &c. Co., 89 Ga. App. 405 (2), supra, and the claimant will not be heard to complain. The case of Smith v. Continental Cas. Co., 102 Ga. App. 559 (2) (116 SE2d 888) relied upon by claimant is not applicable to the present case in view of the agreement of counsel and that they were taken in behalf of the objecting party and that the board ordered the record held open for 30 days for the express purpose of receiving medical testimony. One of the cases cited, Bowie v. Findly, 55 Ga. 604, to sustain the ruling in Smith expressly noted an exception "unless there is some order or agreement of parties to the contrary."

3. It follows that the judge of the superior court did not err in affirming the action of the Board of Workmen's Compensation in affirming the findings and award of the single director.

Judgment affirmed. Bell and Hall, JJ., concur.