Opinion
30392.
DECIDED JULY 14, 1944. REHEARING DENIED JULY 20, 25, 1944.
Appeal; from Troup superior court — Judge Boykin. October 30, 1943. (Application to Supreme Court for certiorari.)
Neely, Marshall Greene, for plaintiffs in error.
Wyatt Morgan, Wright Lipford, contra.
1. On appeal from an award denying compensation to the widow of a deceased employee the court held that certain testimony which was stricken was admissible, and remanded the case to the State Board of Workmen's Compensation for another hearing. There was no direct appeal from this judgment, and it became the law of the case as to the admissibility of the evidence embraced in the ruling.
2. The hospital records, not made by the witness who sought to identify them, were hearsay, and were improperly admitted and considered in the making of the award.
3. On the next hearing the board is directed not to consider the affidavit of a physician stating his opinion as to the cause of death, in the absence of an agreement that it be used as evidence.
DECIDED JULY 14, 1944. REHEARING DENIED JULY 20, 25, 1944.
Mrs. Mary Kent filed a claim for compensation for the death of her husband who she contended died because of an accident arising out of and in the course of his employment. On the first hearing of the case Director Arlie Tucker issued an award denying compensation in which he stated that the declarations of the deceased employee to his wife, his physician, and others — to some as to his receiving a blow on his head, and to some as to how and when he received it, etc., — were hearsay and not a part of the res gestae, and that such evidence was stricken. The director found that the evidence was not sufficient to show that the death of the employee was caused by an injury or that an injury contributed to it. The claimant appealed on the ground that the evidence stricken should have been considered in making the award. On appeal the award denying compensation was reversed, and the case remanded to the board with direction that the evidence stricken should be considered. The employer and insurance carrier filed exceptions pendente lite to the judgment of the superior court reversing the award and remanding the case. The board heard the case again, considered the evidence stricken on the first trial, and additional evidence of like character, and entered an award granting compensation. The employer and the insurance carrier appealed from the second award principally on the ground that it was based on hearsay and illegal testimony. On this appeal the judge of the superior court held that the judgment of the superior court holding the stricken evidence admissible and remanding the case was binding on the parties, and affirmed the award granting compensation. The employer and the insurance carrier appealed to this court, assigning error on the final judgment affirming the last award, and on the exceptions pendente lite to the judgment holding the stricken testimony admissible and remanding the case.
1. The ruling made by the superior court holding that the evidence excluded by the board was admissible was not appealed from directly, and became the law of the case as to such ruling and evidence covered by it. See answer of the Supreme Court to certified question by this court. American Mutual Liability Ins. Co. v. Kent, 197 Ga. 733 ( 30 S.E.2d 599).
2. Certain hospital records were introduced in evidence. These records were not made by the witness who sought to identify them. They were admitted in evidence over the objection that they were hearsay evidence, and the award shows that the facts shown by the records were considered in the making of the award, to wit, that the deceased complained to a nurse in the hospital of severe headaches and pains in his head. Under the rulings of this court such evidence is inadmissible. Bankers Health Life Ins. Co. v. Kelsey, 60 Ga. App. 899 ( 5 S.E.2d 600), and cit. Under the recent ruling in Sisson v. American Mutual Liability Ins. Co., 71 Ga. App. 284 ( 30 S.E.2d 501), where the record shows that the award is based in part, or very probably so, on illegal findings from the evidence, the award must be reversed. This evidence was not admissible under the law of the case, for the reason that the nurse to whom the statements were alleged to have been made was not under oath and subject to cross-examination.
3. If a physician's affidavit stating his opinion as to the cause of the death of the employee was considered by the board in the absence of an agreement by the employer and insurance carrier, it is directed that it not be considered as evidence on the next hearing in the absence of such an agreement.
The court erred in affirming the award for the reason stated in the second division of the opinion.
Judgment reversed. Sutton, P. J., concurs.
Parker, J., dissents from the ruling in the second division of the opinion, and from the judgment.