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PHOENIX INSURANCE OF HARTFORD et al. v. WEAVER et al.; and vice versa.
46377.
46378.
Workmen's compensation. Grady Superior Court. Before Judge Culpepper.
EVANS, Judge.
1. The weight and credit to be given to the testimony of witnesses and other evidence before the Board of Workmen's Compensation are solely matters for determination by it. Where the evidence shows the deceased husband of the claimant never recovered from the effect of a snake bite arising out of and in the course of his employment but died after a lingering illness, the finding of fact that the effects of the compensable snake bite contributed proximately to the deceased's death eleven weeks after was proper.
2. In certain instances reasonable attorney's fees may be awarded to the attorney for the claimant by virtue of the provisions of Code 114-712, as amended (Ga. L. 1937, pp. 230, 233; 1937, pp. 528, 535; 1943, pp. 167, 169), but here the lower court did not consider this a frivolous appeal, and since the evidence, based in part upon expert opinion, raised certain conflicts which were decided by the board, there was no error in the court's refusal to grant attorney's fees. LaFavor v. Aetna Cas. &c. Co., 117 Ga. App. 873 (1) (162 SE2d 311); New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677 (5) (112 SE2d 273).
3. The facts here show clearly that the main appeal was not taken for delay only, hence this court refuses to grant the appellee 10% of the award authorized by Code 6-1801. See in this connection Estralita Lamps v. Marietta Industrial Assn., 80 Ga. App. 196, 199 (55 SE2d 822); Linster v. Chambers, 121 Ga. App. 799 (2) (175 SE2d 875).
This is a workmen's compensation case in which an award was made by a deputy director, thereafter affirmed by the full board with certain immaterial changes. On appeal to the superior court the award was affirmed. The main appeal complains that the lower court erred in denying the appeal of the employer and insurer from the award of the board. The cross appeal complains that the lower court erred in denying the claimant attorney's fees therein in that the appeal was without reasonable grounds and the uncontradicted evidence shows that claimant was entitled to reasonable attorney's fees.
The claimant is the widow of the employee, who died after a lingering illness resulting form a rattle snake bite which arose out of and in the course of his employment.
Only the first headnote requires further discussion, as the second and third headnotes require no further elaboration. The deputy director and the board each made findings of fact to the effect that the employee died from a blood condition. Defendant's experts testified that said blood condition was leukemia. The deceased lingered for eleven weeks after being bitten by the snake, and never recovered therefrom. There was testimony to the effect that the snake bite contributed proximately to the death of the deceased.
The widow of the deceased testified that her husband continuously suffered from the snake bite from its date until his death, describing his physical condition during that time, including his being constantly attacked by very high fevers, and that he never recovered from the effects of the snake bite.
This case is somewhat similar to the case of Atlantic C. L. R. Co. v. Godard, 211 Ga. 373, 379 (86 SE2d 311); and the same case reported later in 93 Ga. App. 671, 672 (92 SE2d 626) in which a verdict for plaintiff was affirmed. The defendant contended that deceased died from cancer, whereas the widow contended he died from a severe beating administered by a robber while her husband was acting in the course of his employment. All of the expert medical testimony was to the effect that the cancer caused death, and that the beating played no part therein; but the widow and her son testified that the deceased went steadily downward in health from the time of the beating until the time of his death, and that he never recovered therefrom. All of the above details are not shown in the reports of the Godard case but are shown by the permanent records in the offices of the Clerk of the Supreme Court and the Clerk of the Court of Appeals. Suffice it to say that in a contest between near relatives and physicians as to cause of death, a jury may believe the near relatives where they testify to sufficient familiarity with the ill person to form an opinion. See American Fidel. &c. v. Farmer, 77 Ga. App. 166 (17) (48 SE2d 122).
But here also there was testimony of one of the expert medical witnesses to support this finding, and to authorize the finding by the deputy director that the "effects of snake venom and his prolonged weakened condition after his bite may have contributed to the progress of leukemia, and, in any event, caused his condition to be so run down that his death occurred sooner than it would have otherwise."
Further, it cannot be successfully contended that the board was bound by the testimony of one or all of the medical experts. Same could have been credited in whole, or in part or discredited and given no probative value whatever. In Ocean Acc. &c. Corp. v. Lane, 64 Ga. App. 149 (1) (12 SE2d 413), it is held: " 'The opinion of an expert witness is not conclusive upon the jury. Such testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion, and can disregard it. The jury may deal with such testimony as they see fit, giving credence to it or not.' Manley v. State, 166 Ga. 563, 566 (19) (144 SE 170); Liberty Mutual Insurance Co. v. Williams, 44 Ga. App. 452 (161 SE 853)."
The lower court did not err in affirming the board.
Judgment affirmed on the main appeal and on the cross appeal. Jordan, P. J., and Quillian, J., concur.
Frank C. Vann, for appellees.
Alexander, Vann & Lilly, Frank T. Holt, for appellants.
ARGUED JUNE 29, 1971 -- DECIDED SEPTEMBER 9, 1971.
Friday May 22 16:09 EDT


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