The court did not err in affirming the award of the full Board of Workmen's Compensation for the reasons given in the opinion.
DECIDED JULY 10, 1946. REHEARING DENIED JULY 24, 1946. This case arose under the provisions of the Workmen's Compensation Act. E. Z. Mills Inc. was the employer; Lumbermen's Mutual Casualty Company was the insurance carrier; and Jonas Allen was the employee. Allen was accidentally killed within the terms of the act, from an injury arising out of and within the scope of his employment. One Lena Jennings first filed a claim, alleging herself to have been the wife of the deceased and entitled to an award as his widow. During the first hearing, it developed that Carrie (or Corrie) Christian Allen was probably the lawful wife of the deceased and the true claimant for compensation. At the instance of the attorney for the carrier, the hearing was continued and further evidence was taken by the hearing director. After the final hearing by the director, he concluded as a matter of fact and law that Corrie was the lawful wife of Jonas Allen and that Lena Jennings was not. The hearing director further found that Corrie was not entitled to compensation because she had voluntarily abandoned Jonas Allen before the accidental death. There was no appeal from the award of the hearing director for Lena Jennings; but Corrie appealed from his award to the full board. Upon a review of the record, the full board unanimously reversed the award of the director and unanimously concluded that Corrie was, at the time of the accidental death of Jonas Allen, the lawful wife of the deceased, and had not abandoned the deceased, but that he had abandoned her. The full board awarded compensation to Corrie. The employer and insurance carrier appealed the award to the superior court, which affirmed the award of the full board in favor of Corrie. The employer and the insurance carrier excepted to the judgment of the superior court.
The record in this case consists of over 105 pages. The evidence from the various witnesses comprises the greater portion of the record. We have read the entire record several times because there is a sharp conflict between the contentions of distinguished counsel *Page 134 for both parties as to the correct construction which should be given to the evidence and the law applicable thereto. We deem it not only impracticable but unnecessary as well to set forth the evidence in its entirety. From our careful study of the case we are convinced that the findings of fact as set forth in the award of the full board are fair and sufficient for a determination of the case. We shall quote partially from the findings of fact of the full board in its award, and add only a few excerpts from the record of the evidence, which do not clearly appear from the findings of fact of the full board.
"Findings of Fact. We find as a fact that the employee, Jonas Allen, deceased, married Corrie Christian Allen on the 24th day of January, 1917, and that said marriage was never dissolved, either by death or divorce, prior to December 13, 1944.
"We further find as a fact that the employee, Jonas Allen, deceased, went through a marriage ceremony with Lena Jennings on the 25th day of April, 1920, and that no effort or attempt was thereafter made to dissolve this marriage through any legal proceedings, but we find as a fact that, at the time of this second marriage, Jonas Allen was lawfully married to Corrie Christian Allen and that Corrie Christian Allen was then living and his marriage to her had not been dissolved by divorce.
"In the present state of this case, it is unnecessary to make any findings of fact regarding the purported marriage of Jonas Allen to Magnolia Stephens.
"We further find as a matter of fact that some two years after Corrie Christian Allen and the deceased married, the deceased abandoned Corrie Christian Allen.
"We further find as a matter of fact that following the abandonment of Corrie Christian Allen by the deceased there was never any bona fide offer on the part of the deceased to resume normal marital relations with Corrie Christian Allen.
"We further find that as a matter of fact said abandonment on the part of the deceased continued up to the time of his death on December 13, 1944.
"From a hasty perusal of the testimony adduced at the hearing held May 23, 1945, it might be difficult to assemble evidence of an uncontradicted nature in favor of Corrie Christian Allen. However, by painstakingly reviewing the evidence taken at the hearing *Page 135 May 2, 1945, together with the evidence taken May 23, certain definite facts can be established in favor of Corrie Christian Allen.
"Among other things, the evidence in the record shows that the deceased was the father of a child born to Lena Jennings sometime during the year of 1918 and at a time when Lena Jennings was not married to the deceased. The deceased married Corrie Christian Allen January 24, 1917, at a time when Corrie Christian was pregnant, the deceased being the father of the unborn child.
"The deceased married Lena Jennings in Hamilton County, Tennessee, April 25, 1920, and at a time when he was still married to Corrie Christian Allen. The deceased was the father of a second child born to Lena Jennings July 18, 1920, and at a time when the deceased was still legally married to Corrie Christian Allen. The deceased was the father of another child born to Lena Jennings in 1922, and still another child born to Lena Jennings in 1923. . . It is quite evident from the testimony of Corrie Christian Allen that she has very little conception of time and a very meager memory of events. Not having had the privilege of talking to claimant, we are denied the privilege of estimating her mentality, but a careful perusal of her testimony, we think, warrants, a finding that her intelligence is at an extremely low ebb. Her testimony does not indicate that there was any attempt on the part of claimant (Corrie Christian Allen) to circumvent the truth. We believe that the many contradictions in her testimony were purely the outgrowth of ignorance and inability to recall time, places, and events in their natural sequence. It is further apparent that too often there was a desire on the part of claimant (Corrie Christian Allen) to supply the type of answer requested by the particular questioner.
"However, by borrowing some of the facts brought out in the evidence at the hearing held May 2, 1945, we are able to adjust some of the apparent contradictory statements of claimant, particularly with reference to the actions and conduct of the deceased. . .
"From the evidence of Lena Allen [Lena Jennings], it is apparent that the deceased took up residence with Lena about the year 1920. True, the evidence shows that the deceased was the father of a child born to Lena in 1918, but it is also apparent that when Lena moved to Chattanooga about 1920 the deceased moved there with her and continued to live with her for some time thereafter and was the father of Lena's subsequent children born in 1922 and 1923. *Page 136
"Although the evidence is conflicting as to the cause of the separation, the established facts warrant a finding of fact that the deceased was guilty of repeated acts of immorality, one of the last events of transgression occurring February 23, 1940, at which time he married Magnolia Stephens in Bartow County, Georgia. The record is absolutely void of any misconduct on the part of claimant, Corrie Christian Allen, other than her pregnancy prior to January 24, 1917. The deceased being the father of Corrie Christian Allen's unborn child, the marriage of the deceased and Corrie Christian on January 24, 1917, legitimatized the child. . .
"Although Corrie Christian Allen testified that she and the deceased agreed to separate, she likewise testified that the deceased left her. Hence, it is within the province of the board to decide the truth of this particular matter based on the evidence in the case.
"Although the evidence does not show that claimant stated, in response to interrogation on the part of the hearing director, that the deceased tried to get claimant to come back to him, she further testified that she refused to do so because of the way he had treated her; that her refusal was based on his getting drunk, cursing her, striking her, and running after women. In light of all the testimony in the record and claimant's abject ignorance, we seriously question the intention of the deceased to again take up normal marital relations with claimant. Certainly, any expressed intention of the deceased to have claimant return to him is inconsistent with the established facts that he was the father of a child born to Lena Jennings in 1918; the father of still another child born to Lena Jennings July 18, 1920; the father of still another child born to Lena Jennings in 1922; and the father of a fourth child born to Lena Jennings in 1923.
"Assuming claimant did leave the deceased for cause, and that the deceased later asked the claimant to return to him without more is, to our way of thinking, insufficient to charge claimant with voluntary abandonment of her husband. The evidence in this case amply warrants a finding of fact that the deceased was guilty of immorality on numerous occasions from 1917 up to 1940. There is no evidence in the record that the deceased approached claimant and imparted to her the information that he had amended his ways, that he was penitent, that there was any intention on his part *Page 137 to cease and desist from his acts of immorality, abuse and drunkenness. Subsequent events prove the deceased entertained no such intention.
"Based on the above and foregoing findings of facts, we reach the following Conclusions of Law: We find as a matter of law that the presumption of law as to the validity of the second marriage of Jonas Allen to Lena Jennings was overcome and rebutted by proof of the establishment of the prior marriage of Jonas Allen to Corrie Christian, together with the showing that Corrie Christian was living at the time of the second marriage and that said prior marriage had not been dissolved by divorce decree.
"We therefore conclude as a matter of law that Corrie Christian Allen was the lawful wife of Jonas Allen at the time of his death on December 13, 1944, and entitled to recover compensation in this case as the widow of Jonas Allen.
"We further conclude as a matter of law that Lena Jennings Allen is not entitled to collect compensation as the widow of Jonas Allen, as her marriage to him was a void marriage, there being at the time a prior, valid, existing, and undissolved marriage to Corrie Christian Allen."
In addition to the findings and the conclusions which we have quoted and which we take from the award of the full board, we deem it helpful to take certain questions and answers from the record of testimony, which bear upon an excerpt that appears in the statement of the case in the award of the full board. This excerpt is: "There was introduced and received in evidence, without objection, a written statement dated May 11, 1945, admittedly signed by Corrie Allen, in which statement she stated that `we did not have any particular reason for separating, but we just quit.'" The questions propounded and the answers of Corrie are:
"Q. You didn't have any particular reason to quit, you just quit? A. Yes, I had particular reasons all right, he was too mean, he got drunk all the time and he stayed out all the time. Q. He left you there at his mother's house where you had been living? A. Yes. Q. And he came right back there, didn't he? A. He didn't come back to me. Q. You were gone? A. He didn't come back down there. . . Q. You just moved away and quit, you never lived with Jonas a day since? A. You know after he *Page 138 run after all them women. Q. What? A. Not with him getting drunk and running with women and cursing me. Q. Did you ever have him arrested? A. No, I could get on out of the way. Q. What? A. I could move on out of the way. Q. So you just moved on out of the way? A. Yes. Q. You did that because you wanted to? A. Yes, on account of that kind of treatment. Q. He didn't run you out of the house, did he? A. No, sir, but he did some things that I got out. Q. In other words, you left the place that he was providing for you because you wanted to go, yourself? A. No, sir, I didn't do that. Q. Well, he didn't do anything — run you out, Jonas didn't? A. He was not treating me right. Q. I am talking about, not his people, but Jonas didn't run you out? A. No, sir, I could not stay out there with all that. Q. You ever ask Jonas to go and live with you at some place? A. No, sir. Q. Now in other words, you just got tired, didn't you? A. Got tired of the way he was treating me, I shore did. Q. And you never made any attempt to live with him since? A. Was not any use. . . Q. Did you ever take any steps or raise any complaint or objection about Jonas marrying Lena? A. No, sir. Q. In other words, it was all right with you, was it? A. It was not all right, but you know I could not help myself. Q. What did you go down to Cartersville on the 10th day of May for? A. Because somebody was hunting me, trying to find me, and I went down to see who it was. Q. Who was trying to find you? A. I don't know, some man, insurance man, somebody. Q. Who? A. Insurance man. Q. Who told you an insurance man was trying to find you? A. I seen him. . . Q. You can read. You signed a statement for this man that came to see you, didn't you? A. Yes. Q. Did you tell him the truth? A. Yes. Q. That statement that you signed, — is that your name? A. Yes, that is it. Q. And those are your initials at the bottom of the first page? A. Yes. Q. This statement said, `You have read this statement,' and the answer is `Yes.' A. Yes. Q. The answer is `Yes.' A. (No answer.) Q. Did you tell him that `We didn't have any particular reason for separating, but we just quit'? A. No, sir, I didn't tell him that. Q. You didn't tell him that? A. No, sir. . . Q. You told him that; why, then, do you come in here now and say that you didn't just quit? A. Because he didn't ask me that, nohow; he didn't *Page 139 ask me nothing like that. Q. You said you didn't have any particular reason for quitting him, didn't you? A. I didn't tell that man that. Q. It says that in that statement? A. Yes, I know it. Q. That you signed; you said just now that you told him that? A. Well, let me tell you something., that man ain't asked me nothing about how long married and when we separated, nothing like that. Q. Well, he put down there, `We didn't have any particular reason, but we just quit.' A. Well — Q. You said that is the truth, is that right? A. I guess it is. Q. You know it is. (No answer.) At the time you signed that statement was it the morning that you got in from where you came from that morning? A. From Harlan [Kentucky]? Q. How long had you been on the train? A. I had been when I came from Harlan? Q. Yes. A. From six o'clock until eight o'clock in the morning. Q. You got out and came to my office and saw me first? A. Yes, sir. Q. They came to you and talked to you about that, didn't they? A. Yes, sir. Q. And let you sign it, is that right? A. Sure did. . . Q. Did you or did you not forgive him for this misconduct? A. No, sir, I didn't forgive him. . . Q. Now, when you finally separated, did you leave because you wanted to leave, or did you leave because he wanted you to leave? A. I left because he wanted me to leave, the way he treated me, that is the reason I left. Q. Did you do it of your own volition or with or did he make you go? A. Come in there drunk and cursing and frighten me. Q. Did he hurt you? A. Yes, you know he did by striking me. Q. He hit you? A. He shore did. . . Q. Now I will ask you this — did you voluntarily leave Jonas or did he leave you? A. He left me." (a) The only issue in this case is whether the claimant had voluntarily deserted or abandoned her deceased husband, Jonas Allen, under the provisions of the Code, § 114-414 (a). The hearing director found as a matter of fact that the claimant had abandoned or deserted her deceased husband. Upon an appeal to the full board, the full board in a very detailed and carefully written analysis of the record reversed the award of the hearing director and found in favor of the claimant. This award was appealed to the superior court. That court in turn affirmed the award of the full board. *Page 140
(b) The evidence is somewhat conflicting, but after a careful consideration and analysis of the entire record, we are convinced that the full board was authorized, under the evidence and the law, to award compensation to the claimant, Corrie Allen.
(c) The employer and insurance carrier base their contention for reversal wholly on the principle of law that, since the testimony of the claimant is "self-contradictory, vague, or equivocal," such testimony is to be construed most strongly against the claimant. It is contended that, since there is not other evidence in the record in favor of the claimant, she is not entitled to recover as a matter of law. We disagree with this contention for two reasons: (1) Construing the evidence most strongly against the claimant, the fact-finding body, the full board, were authorized to conclude that the claimant was entitled to recover; and (2) there is other evidence in the record in favor of the claimant, to the effect that the deceased abandoned and deserted the claimant and that the claimant did not desert or abandon the deceased. As to the latter proposition, the full board considered and set out somewhat in detail other evidence in favor of the claimant, with relation to the deceased having abandoned the claimant and having lived in a state of illegal relations with Lena Jennings, she having borne four children by him, and the deceased having gone through a ceremony of marriage with Lena; then later, while the claimant and Lena were still alive, the deceased entered into a third ceremony of marriage, the last with a woman by the name of Magnolia Stephens, in 1940. All of this testimony forms a part of the record, which shows evidence in favor of the claimant to the effect that the deceased abandoned her, and is corroborative of her testimony that the deceased was cruel to her, mistreating her personally by striking her, and cursing her when he was in a drunken condition, and making it impossible for the claimant to live with him or to return to him.
Conceding, but not agreeing with the contention that the claimant's testimony is self-contradictory, vague, or equivocal to the extent that — when construed most strongly against her — it would not support an award in her behalf, there is evidence in her favor other than that of the claimant. In this view, the award is amply authorized. This being true, the principles of law relied on by the employer and the insurance carrier, as announced in the decisions *Page 141 cited, are not applicable and controlling here. Some of the decisions cited and relied on are: Horne v. Peacock,122 Ga. 45 (2); Holloway v. Travelers Ins. Co., 50 Ga. App. 87,89; House v. Parker, 56 Ga. App. 674; Standard Brick Tile Co. v. Posey, 56 Ga. App. 686, and many others. This court held in Rogers v. Woods, 66 Ga. App. 195, 197 (17 S.E.2d 283) : "The rule that a party's testimony must be construed against him is not applicable to this case because there was other testimony upon which the jury might have based its verdict." It is well established that "the findings of fact made by the directors within their power shall, in the absence of fraud, be conclusive." Code, § 114-710.
(d) There is one other phase of the record, which we deem pertinent to discuss. That phase concerns the evidence relative to a statement which the agent of the insurance carrier procured from the claimant. It must be kept in mind that this statement was an extrajudicial document. It was introduced in evidence, but there is little of its contents mentioned except, "We did not have any particular reason for separating, but we just quit." In addition to the findings of fact which we have copied from the award of the full board, we have set forth certain questions and answers from the record of testimony. It will be noted that the full board were authorized to conclude that the claimant did not intend to sign a statement to such effect. This phase involved a question of credibility. In view of the whole record, the fact-finding board were authorized and justified in reaching the conclusion that the deceased, Jonas Allen, abandoned the claimant and that she did not abandon him. This is true notwithstanding the above-quoted phrase in the statement which the claimant denies having made, as set out in the statement obtained from her by the agent of the insurance carrier. The agent could have misunderstood her, or she could have misunderstood him. The full board could well have found this to be true without imputing bad faith to the agent of the insurance carrier. The judgment of the superior court in affirming the award is affirmed.
Judgment affirmed. Sutton, P. J., MacIntyre and Parker, JJ.,concur, and Broyles, C. J., and Felton, J., dissent.