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McCORD v. EMPLOYERS LIABILITY ASSURANCE CORPORATION et al.
36732.
Workmen's compensation. Before Judge Moore. Fulton Superior Court. February 21, 1957.
NICHOLS, J.
Gladys McCord filed an appeal to the Superior Court of Fulton County from an award of the State Board of Workmen's Compensation denying her compensation because the injury did not arise out of and in the course of her employment. The award was based on the following stipulation of fact entered into by the parties.
"Case of: Gladys McCord.
"Employer: Columbia Baking Company.
"Carrier: Employers Liability Assurance Corporation.
"It is stipulated by and between the parties to the above styled case as follows: 1. Gladys McCord, employee, on or about May 24, 1956, sustained an injury. 2. She was employed by the Columbia Baking Company, employer, at an average weekly earnings of $54.80. 3. There is a dispute as to how the accident happened which caused injuries to the claimant's leg. The company advises 'During break, at water fountain Gladys McCord [and] Maybell Hardy threw a bit of water on each other, Gladys McCord ran and fell hurting leg.' The claimant contends that while she was on a break she went into another department in order to see a new machine which she had not seen. While in other department she fell and hurt herself. 4. The parties hereto stipulate and agree that Gladys McCord, employee, did not sustain an accident and injury which arose out of and within the course of her employment and is, therefore, not entitled to compensation benefits. Wherefore, the parties hereto pray approval of this stipulation and request an award of the State Board of Workmen's Compensation approving the same."
It was alleged in the appeal: "That the final award in said matter was procured by fraud in the following manner: That following claimant's injury on or about May 24, 1956 while employed by the Columbia Baking Company, the said employer and or its insurance carrier Employers Liability Assurance Corporation, Ltd., furnished to claimant a physician A. A. Weinstein to treat a traumatic injury to the varicose veins in claimant's leg; and said physician operated on claimant for said condition and injury; and said employer and its insurance carrier, realizing that claimant's injury was serious and grave and not cured or alleviated by said treatment, and that said condition had grown worse, since injury, concealed the said fact and facts from claimant, and represented to claimant that said physical injury to claimant had been alleviated and cured, and claimant believed said representations, and relied on them; and said aforesaid insurance carrier offered to claimant to pay medical expense of approximately $700 and to pay claimant $1000, and in reliance upon the aforesaid representations made to and believed by claimant, claimant did accept the same and a check or draft was issued payable jointly to her and the physician in the amount of approximately $700 which she endorsed and returned to the aforesaid insurance company and a further draft or check was issued and delivered to her payable to her in the amount of $1000 which claimant cashed; and that claimant's condition instead of improving and getting better has steadily deteriorated and got worse necessitating further medical and hospital treatment; and that claimant signed a paper, at the instance of said insurance carrier the purport of which she did not, at the time and in the physical condition she was in at the time of signing, understand nor was any explanation of the true nature of the paper explained to her; and claimant has since and lately learned that said paper was in the nature of a disclaimer of any injury to the claimant in the course of employment, which she did not understand the same to be; and that the signing of said paper by claimant was procured by the practice of fraud and deceit upon this claimant by means of the aforesaid representations, which claimant believed, and relied and acted upon; and the said insurance carrier used said paper, in fraud of this Honorable Board, and procured an award thereon, dated August 6, 1956 in fraud of this claimant and of this Honorable State Board of Workmens Compensation of Georgia, denying claimant compensation for injury sustained in the course of employment; and through said fraud and deceit practiced as aforesaid attempted to oust the said board of jurisdiction to pass on claimant's injury, compensation therefor, and of jurisdiction to pass upon a change on condition of claimant; and claimant further says that the aforesaid acts of the employer and/or its insurance carrier are contrary to law as ousting the
State Board of Workmen's Compensation of Georgia, of its jurisdiction over employer and employee after the sustaining of injury by the employee in the course of employment by the carrying out of the aforesaid acts and scheme . . ." It was then prayed in such appeal that the case be recommitted to the board for further hearing in order to prove and make a matter of record the acts alleged. On hearing the appeal the Superior Court of Fulton County affirmed the award of the board and dismissed the appeal. It is to this judgment that the claimant excepts.
Assuming but not deciding that the superior court could consider the merits of the appeal from the award of the full board such appeal failed to allege such facts as would authorize the court to order the award of the full board set aside and the case recommitted for further hearings. As was said in Heath v. Standard Accident Ins. Co., 94 Ga. App. 548 (95 S. E. 2d 726), in order to set aside an award of the full board, which was entered pursuant to an agreement between the parties, because of fraud, accident or mistake, this fraud, accident or mistake is the same as is set forth in Code 37-219, and is not available where the person seeking to set aside the award has been guilty of fraud or negligence himself. In the present case the agreement signed by the claimant which is said to have been procured by fraud stated not only that the claimant did not suffer an injury which arose out of and in the course of her employment, but stated that she was not entitled to any compensation, such language being clear and understandable and it is not alleged that the claimant was prohibited from reading such agreement or that she did not read it. Therefore, it must be concluded that the claimant was either negligent in failing to read such agreement or that she was negligent in signing it if some part of it was untrue and she had read it.
Moreover, even considering the statements in the agreement that the injury did not arise out of and in the course of the claimant's employment and that she was not entitled to compensation as conclusions not binding on the parties signing the agreement, there is no contention that the injury occurred any way other than that alleged in such agreement. If the injury occurred as the employer and insurer contend: "During break, at water fountain Gladys McCord [and] Maybell Hardy threw a bit of water on each other, Gladys McCord ran and fell hurting leg," then the injury was caused by "horseplay" in which the claimant was engaged and it was not compensable. See Georgia Cas. Co. v. Martin, 157 Ga. 909 (122 S. E. 881), Maddox v. Travelers Ins. Co., 39 Ga. App. 690 (148 S. E. 307), and Givens v. Travelers Ins. Co., 71 Ga. App. 50 (30 S. E. 2d 115). On the other hand if the injury occurred as the claimant contended in the agreement: "While she was on a break she went into another department to see a new machine which she had not seen. While in the other department she fell and hurt herself," the employee was on a break and the injury did not arise out of her employment, but arose out of a personal trip into a department of the employer's premises other than where she worked to see a new piece of machinery. See Austin v. General Accident &c. Corp., 56 Ga. App. 481 (193 S. E. 86); Aetna Casualty &c. Co. v. Honea, 71 Ga. App. 569 (31 S. E. 2d 421); Ocean Accident &c. Corp. v. Farr, 180 Ga. 266 (178 S. E. 728). Therefore, the judgment of the superior court affirming the award of the full board must be affirmed.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
John M. Williams, contra.
John L. Respess, Jr., F. L. Breen, for plaintiff in error.
DECIDED JUNE 11, 1957.
Saturday May 23 01:55 EDT


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