Athens Ry. & Elec. Co. v. Kinney

Citation127 S.E. 290,160 Ga. 1
Decision Date28 February 1925
Docket Number4423.
PartiesATHENS RY. & ELECTRIC CO. v. KINNEY.
CourtSupreme Court of Georgia

Syllabus by the Court.

The widow of an employee killed in the line of his duties can maintain a suit for his homicide against a party other than the employer, where the death resulted from the negligence of such third party, and where the employer and such third party were not joint tort-feasors, although she has been awarded and has accepted compensation from her husband's employer under the provisions of the Workmen's Compensation Act of 1920 (Acts 1920, p. 167), less than the value of the husband's life, where she offers to account for the compensation awarded and received, and prays that a part of the recovery, equal in amount to the compensation which she has been awarded under the Workmen's Compensation Act, be for the use of the party paying the award.

Having held that there is nothing in the Workmen's Compensation Act of 1920 (Acts 1920, p. 167) to prevent the plaintiff from maintaining suit for the homicide of her husband, it is unnecessary to decide whether or not the right of action is enlarged by the amendment of 1922 (Acts 1922, p. 185). The amendment does not have the effect of preventing a recovery against a tort-feasor, other than the employer, of a greater amount than that fixed in the settlement and award which she had had under the provisions of the Workmen's Compensation Act.

The amendment of 1922, referred to above, is not void upon the ground that it is in violation of article 3, section 7 paragraph 8, of the Constitution of Georgia (Civil Code, § 6437), which provides that, "No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof."

Under the facts alleged in the petition, the question as to the negligence of the defendant and its liability to the plaintiff therefor was for determination by the jury, and the court properly overruled the demurrer based upon the ground that the petition did not set forth a cause of action.

Error from Superior Court, Clarke County; Blanton Fortson, Judge.

Action by Mrs. R. M. Kinney against the Athens Railway & Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Erwin Erwin & Nix, John J. Strickland, and R. A. Brown, all of Athens, for plaintiff in error.

Lamar C. Rucker, James W. Arnold, Joel & Elliott, Horace & Frank Holden, and Green & Michael, all of Athens, for defendant in error.

ATKINSON J. (after stating the facts as above).

1. One ground of the demurrer urges that it appears from the petition that plaintiff has been settled with by the employer of her husband, under the terms of which settlement she is to receive $12.50 a week for 300 weeks; that the receipt required by the Act of 1920, given by petitioner, relieved the employer from all further liability, and was a complete settlement as to the right of the plaintiff to recover for the death of her husband; that this settlement, alleged to have been made in pursuance of the Act of 1920 (entitled Georgia Workmen's Compensation Act) became conclusive as to plaintiff, under section 12 of the act. That section reads as follows:

"The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death."

The provision in this section of the act, that the rights and remedies granted to an employee "shall exclude all other rights and remedies of such employee, * * * at common law or otherwise," uses language that is very broad, and which on its face would seem to exclude the right of plaintiff in this case, after accepting the award under the provisions of the Act of 1920, to maintain a suit based upon the negligent and tortious killing of her husband, even though the negligence which resulted in the husband's death was negligence upon the part of a tort-feasor other than the employer of the decedent. But upon a consideration of the language last quoted in connection with the entire act, and with regard to the...

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