The evidence was sufficient in both particulars complained of and the judge of the superior court did not err in affirming the award of the Board of Workmen's Compensation as against the attack made thereon. The cases of Complete Auto Transit, Inc. v. Reavis, 105 Ga. App. 364 ( 124 S.E.2d 491); Consolidated Underwriters v. Smith, 106 Ga. App. 166 ( 126 S.E.2d 465); Jackson v. U.S. Fidel. c. Co., 119 Ga. App. 111 ( 166 S.E.2d 426) do not require a different conclusion here, as in neither of those cases was there evidence that the claimant, while on the job, notified his supervisor that he had hurt himself, and sought the supervisor's aid in completing his work, as was true in the present case. This evidence authorized a finding that the employee notified the employer that he had suffered accidental injury arising out of and in the course of his employment.
The deposition was part of the record sent up to this court, but appellant points out that nowhere in the record does it show that the deposition was admitted into evidence at the hearing of the motion to dismiss. Appellant cites in support of this argument the cases of Smith v. Continental Casualty Co., 102 Ga. App. 559, 560 ( 116 S.E.2d 888), and Jackson v. U.S. Fidelity Guaranty Co., 119 Ga. App. 111 ( 166 S.E.2d 426). These cases, both of which concern workmen's compensation, stand for the proposition that though a deposition is part of the file sent to a reviewing court, it cannot be considered by that court unless it was introduced into evidence at the hearing below.
The question posed is one of utmost importance to the parties to this appeal since "[c]ompliance with the 30-day notice provision of the [Workers'] Compensation Act [OCGA § 34-9-80] is a prerequisite to the payment of compensation." Jackson v. U.S. Fidelity c. Co., 119 Ga. App. 111 (1) ( 166 S.E.2d 426) (1969). See also Barron v. Pacific Employers Ins. Co., 149 Ga. App. 113 (2) ( 253 S.E.2d 777) (1979).
Hembree v. Chevrolet Motor Division, 108 Ga. App. 113 ( 131 S.E.2d 859); Argonaut Ins. Co. v. Allen, 123 Ga. App. 741 (1) ( 182 S.E.2d 508). The appellant argues that under that which was held in Jackson v. U.S. Fidelity c. Co., 119 Ga. App. 111 ( 166 S.E.2d 426), the deposition was not introduced and therefore could not be considered. The Jackson case states: "Although a deposition taken by one of the parties to a workmen's compensation case is a part of the file sent to this court, it will not be considered if it was not introduced in evidence before the board.
1. Although the clerk of the trial court has included the interrogatories and answers and the deposition in the record transmitted to this court, these were never introduced into evidence, never became part of the transcript below and are not properly a part of the record here. Herring v. Pepsi Cola Bottling Co., 113 Ga. App. 680 (1) ( 149 S.E.2d 370); Smith v. Zachry, 128 Ga. 290 (1) ( 57 S.E. 513). They cannot be considered in ruling upon the enumerations of error. Smith v. Continental Cas. Co., 102 Ga. App. 559 (2) ( 116 S.E.2d 888); Howell v. Federated Mut. c. Ins. Co., 114 Ga. App. 321 (1) ( 151 S.E.2d 195); Jackson v. U.S. Fidel. c. Co., 119 Ga. App. 111 (3) ( 166 S.E.2d 426). "The burden is on the party alleging error to show it affirmatively by the record." Shepherd v. Shepherd, 225 Ga. 455, 457 ( 169 S.E.2d 314). As will hereafter appear, certain of the enumerations of error are dependent upon matter to be found only in the interrogatories and answers, in the deposition, or by assertions in appellants' brief.
Smith v. Continental Cas. Co., 102 Ga. App. 559 (2) ( 116 S.E.2d 888); Howell v. Federated Mut. c. Ins. Co., 114 Ga. App. 321 (1) ( 151 S.E.2d 159)." Jackson v. U.S. Fidel. c. Co., 119 Ga. App. 111 (2) ( 166 S.E.2d 426). 2.
Under these circumstances the director and the board properly considered the depositions as evidence in the case..." Hembree v. Chevrolet Motor Division, 108 Ga. App. 113, 114 ( 131 S.E.2d 859). Since Dr. MacNaughton's deposition contains a stipulation between counsel that it was taken for the purpose of evidence, it falls squarely within the Hembree rule and was properly considered by the director and the court. See also Peters v. Liberty Mut. Ins. Co., 113 Ga. App. 41 (2) ( 147 S.E.2d 26). This holding is not in conflict with Smith v. Continental Cas. Co., 102 Ga. App. 559 ( 116 S.E.2d 888); Howell v. Federated Mut. c. Ins. Co., 114 Ga. App. 321 ( 151 S.E.2d 195); and Jackson v. U.S. Fidel. c. Co., 119 Ga. App. 111 ( 166 S.E.2d 426) as these cases are distinguishable on their facts. 2.
A surety for hire is an insurer and the rules are applicable to insurance companies to the determination of liability in any given case. Cowles v. U.S.F. G. Co. (Wash.), 72 P. 1032; Frost, Guaranty Ins. Co. 3; People, ex rel. Kasson v. Rose, 174 Ill. 310, 44 L.R.A. 124, 51 N.E. 246; Guarantee Co. v. Mechanic's Sav. Bank T. Co., 26 C.C.A. 146, 47 U.S. App. 91, 80 Fed. 766; American Credit Indemnity Co. v. Athens Woolen Mills, 34 C.C.A. 161, 92 Fed. 581; Bank of Tarboro v. Fidelity Deposit Co., 128 N.C. 38; Jackson v. Fidelity C. Co., 21 C.C.A. 394, 41 U.S. App. 552, 75 Fed. 359; Shakman v. United States Credit Guarantee Co., 190 C.A. 281, 38 U.S. App. 431, 73 Fed. 95; People ex rel., Stevens v. Fidelity G. Co., 153 Ill. 25, 26 L.R.A. 295, 38 N.E. 752; Eickhoff v. Fidelity Co., 74 Minn. 139, 76 N.W. 968; Fidelity Co. v. Crays, 76 Minn. 450, 79 N.W. 531; Fidelity C. Co. v. Eickoff, 63 Minn. 170, 30 L.R.A. 586, 65 N.W. 351; State v. Hogan, 8 N.D. 301, 45 L.R.A. 166, 78 N.W. 1051; Robertson v. U.S. Cre. System Co., 57 N.J.L. 12, 29 A. 421; Clafin v. U.S. Cre. System Co., 165 Mass. 501, 43 N.E. 293; Hayne v. Metropolitan Trust Co., 67 Minn. 245; 69 N.W. 916; Strouse v. Am. Cre. Indemnity Co., 91 Md. 244, 46 A. 328, 1063; Trenton Potteries Co. v. Title Guarantee T. Co., 50 App. Div. 490, 64 N.Y. Supp. 116; Minnesota Title Ins. T. Co. v. Drexel, 17 C.C.A. 56, 36 U.S. App. 50, 70 Fed. 194; Wheeler v. Real Estate Title Ins.