Opinion
33829.
DECIDED MARCH 8, 1952.
Appeal; Richmond Superior Court — Judge Kennedy. August 22, 1951.
Lewis Rozier, Randall Evans Jr., for plaintiff.
John F. Hardin, Julian J. Willingham, for defendants.
1. ( a) Undisputed evidence that a letter was properly addressed, properly stamped, and deposited in the United States mails, is sufficient to raise a presumption that the letter was received by the addressee.
( b) Undisputed evidence that a letter was addressed to the "Industrial Board, State Capitol, Atlanta, Georgia," stamped and deposited in the United States mails, together with evidence that mail so addressed is usually and regularly received by its successor, the State Board of Workmen's Compensation, is sufficient to raise a presumption that such letter was received by the intended addressee.
2. ( a) In the exercise of the appellate power granted to judges of the superior courts of this State in regard to workmen's compensation cases, the judges reviewing such cases are not authorized to hear evidence, but must consider only the record on appeal. Newly discovered evidence is not a statutory ground for reversal, for which reason it may not be considered.
( b) Where the evidence in the record is sufficient to support the award, the judge of the superior court has no discretion, upon review thereof, to remand the case for the purpose of taking further testimony.
DECIDED MARCH 8, 1952.
E. J. Womack sustained an injury from an accident arising out of and in the course of his employment, which resulted in his being totally paralyzed for a period of more than three years. His wife testified that in June, 1948, within one year from the date of his injuries she wrote a letter reporting the injury and claim thereunder to the "Industrial Board, State Capitol, Atlanta, Georgia," stamped and mailed by herself in the Augusta post office, and signed "Mrs. E. J. Womack." A duplicate copy of the letter was introduced in evidence at the hearing. There was evidence to the effect that none of the personnel of the State Board of Workmen's Compensation recalled ever having seen such letter, and evidence that it could not be found in the department; but there is no direct evidence that this letter was not received by the Board of Workmen's Compensation.
This court certified to the Supreme Court for decision the following questions in this case:
"1. (a) Is testimony on behalf of the claimant in a workmen's compensation case to the effect that a claim for compensation was interposed on behalf of the claimant by writing a letter within the period of the statute of limitations, which letter contains all facts necessary to constitute a claim under Code § 114-305, and which was properly addressed, properly stamped and mailed to the State Board of Workmen's Compensation, sufficient to support a finding of fact that the claim was filed, notwithstanding evidence to the effect that none of the personnel of the board recalls ever having seen such letter and evidence that it cannot be found in department of workmen's compensation? . .
"(b) If the answer to 1 (a) is in the affirmative, may this fact be established where the evidence is sufficient to authorize the board to find that such letter was, within the period of the statute of limitations, and during the month of June, 1948, addressed to `The Industrial Board, State Capitol Building, Atlanta, Georgia,' the evidence also showing that the letter was `stamped' (but is silent as to the amount of postage) and mailed?. .
"2. (a) May the superior court in the exercise of its appellate jurisdiction in a workmen's compensation case entertain a motion charging fraud in the procurement of the award alleged to have been discovered after the appeal was made, where fraud was not one of the grounds of appeal in the first instance? . .
"(b) If the answer to (2-a) hereof is in the affirmative, may such a motion be filed and entertained after the time for appeal has expired, although an appeal on other grounds is pending?
"(c) If the answers to (2-a) and (2-b) hereof are in the affirmative, may the superior court, in the exercise of its appellate jurisdiction, hear new evidence in support of such a motion?
"3. Where, in a workmen's compensation case on appeal to the superior court, the evidence is sufficient to support the finding of the Board of Workmen's Compensation, may the superior court remand the case to the board for the taking of additional testimony?"
While the Supreme Court declined to answer the above questions ( Womack v. United States Fidelity c. Co., 208 Ga. 717, 69 S.E.2d, 188), it held that the questions comprehend every issue presented for decision, and that to answer said questions would be to decide the case. Thus it becomes the law of the case that answers to these questions will decide this case.
The director before whom the case was heard found that the letter containing notice of claim, which the undisputed evidence showed that Mrs. Womack had written and mailed on behalf of her husband during his period of total disability, and which letter was addressed to the Industrial Board, State Capitol, Atlanta, Georgia, created a presumption of delivery and was sufficient to constitute the filing of the claim, although there is in the record a letter signed by the secretary-treasurer of the board stating that its records do not show that it has ever received any reports in connection with the case or any request for a hearing.
The director entered an award in favor of the claimant, which was appealed to the full board and affirmed. This award was appealed to the Superior Court of Richmond County, and while the appeal was pending there, counsel for the employer and insurance carrier, plaintiffs in error, filed a pleading denominated an extraordinary motion to set aside, reverse, and remand the case on the ground of fraud perpetrated upon the commissioner, in that it is alleged that on July 24, 1951, appellants' counsel learned for the first time that the original of the letter reporting the accident, copy of which was introduced in evidence, is not in the files of the Board of Workmen's Compensation, but is in the possession of an attorney of the Augusta bar, and that a subpoena duces tecum has been served upon him for its production. Fraud in the procurement of the decree was not alleged as one of the original grounds of appeal. Upon consideration of this motion in connection with the appeal, the judge of the superior court reversed and remanded the case to the Board of Workmen's Compensation for the taking of further testimony as to notice and claim having been filed within the statutory period. This judgment is assigned as error.
1. (a) This question is controlled by Ayers v. Aetna Casualty Surety Co., 71 Ga. App. 327 ( 30 S.E.2d 811), in which it was held that testimony of a witness to the effect that he wrote and mailed a letter sufficient to constitute a claim for workmen's compensation, properly addressed and containing sufficient postage, is sufficient to raise the presumption that the same was received by the addressee; and, where such testimony was uncontradicted and no one testified that the letter had not been received by the board, was sufficient evidence to support a finding that a claim had been filed within the period of the statute of limitations. This question must be answered in the affirmative.
(b) The State Board of Workmen's Compensation was created in the form of an Industrial Commission in 1920 (Ga. L. 1920, pp. 167, 193). In 1931 (Ga. L. 1931, pp. 7, 43) the Industrial Commission was abolished and its powers, duties, and functions were transferred to the directors of the Department of Industrial Relations. Code § 54-109 provided that the office of the Department of Industrial Relations be kept in the Capitol. This chapter was abolished in 1937 (Ga. L. 1937, pp. 230, 232) with the creation of a Department of Industrial Relations, the act providing that any reference to the Department of Industrial Relations should thereafter be deemed to refer to the Industrial Board, which was created within the Department of Labor; and the Commissioner of Labor was authorized to "keep and maintain the Department of Labor in the City of Atlanta, Georgia." In 1943 (Ga. L. 1943, p. 167) the Industrial Board was abolished and the Board of Workmen's Compensation was created within the Department of Labor, it having the same duties, powers, and functions. Further, in 1929 (Ga. L. 1929, p. 54), expenditures were authorized for the purchase of property on Capitol Square in the City of Atlanta, on which the State Office Building, which in 1948 housed the Board of Workmen's Compensation, was erected. Code § 91-402 provides that the Governor shall assign rooms in the Capitol to all officers who are required to hold offices there. Rooms were assigned to the board in the State Office Building, which is used for such offices and is located on Capitol Square. Therefore, a letter addressed to "Industrial Board, State Capitol, Atlanta, Georgia" is, in legal contemplation, the same as a letter addressed to the "State Board of Workmen's Compensation, Capitol Square, Atlanta, Georgia," which is the contemporary nomenclature and location of this department. There is also testimony in the record that letters so addressed are frequently received by the board in the regular course of its business, and it must therefore be held that the address upon the letter in question was a proper address, and that the presumption would arise that it was received in the due course of mail. As to the amount of postage, the witness only testified that she "stamped and mailed" it. No cross-examination was directed to the sufficiency of the postage or the denomination of the stamp, and no question was raised on this issue. It might easily have been clarified at the time of the hearing, but, as this was not done, this case will not be reversed on the mere assumption that an incorrect amount of postage was used. The testimony as to the mailing of this letter, under the circumstances of this case, is sufficient to raise a presumption that it was received by the addressee. See Sinclair Refining Co. v. Giddens, 54 Ga. App. 69 (5) ( 187 S.E. 201). This question must be answered in the affirmative.
2. As to the power of the superior court to entertain the extraordinary motion filed while this case was pending therein on appeal, and after the time for appeal had passed, which motion sought to set up as a new ground of appeal fraud in the procurement of the decree, evidence of which was allegedly procured after the rendition of the award — it must first be noted that the appellants, in order to sustain their position, must (a) rely upon newly discovered evidence not in the record, and (b) present such evidence to the superior court. It was held in Hartford Accident c. Co. v. Garland, 81 Ga. App. 667, 671 ( 59 S.E.2d 560), that newly discovered evidence relating to the mailing of a letter to the State Board of Workmen's Compensation, the original of which had not been found in its files, was a question for the board so long as the case was pending before it, and that, "insofar as the judge of the superior court is concerned, in an appeal to it, that court is without authority to disturb an award of the board on account of newly discovered evidence." See also White Provision Co. v. Culbreath, 58 Ga. App. 628 (3) ( 199 S.E. 318); Continental Casualty Co. v. Caldwell, 55 Ga. App. 17, 19 ( 189 S.E. 408). Nor is there any provision of law for the hearing of evidence on an appeal in the superior court. Burdett v. Aetna Life Insurance Co., 40 Ga. App. 92 ( 149 S.E. 55); Liberty Mutual Ins. Co. v. Ragan, 191 Ga. 811 ( 14 S.E.2d 88). The latter case, which is cited by the plaintiff in error, upholds this decision in this regard, although the question there decided was based upon the question of whether a court of equity would be authorized to enjoin an appeal because of such evidence tending to show fraud on the part of the employer. Hartford Accident c. Co. v. Cox, 191 Ga. 143 ( 11 S.E.2d 661), also cited by the appellants, holds to the effect that, where a case is reversed on the ground of insufficient evidence, this judgment being in itself proper, the court may further recommit the controversy to the board for the purpose of taking additional evidence upon the issues specified by the court. Nothing therein stated in the opinion of this court warrants the conclusion that the judge of the superior court might as a discretionary matter remand the case for the purpose of hearing newly discovered evidence where nothing within the record warrants a reversal thereof.
The judge of the superior court erred in reversing the award of the full board.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.