Aetna Life Ins. Co. v. Carroll

• Decision Date: 19 October 1929
• Docket Number: 7095.
• Citation: 150 S.E. 208,169 Ga. 333
• Parties: ÆTNA LIFE INS. CO. et al. v. CARROLL. [*]
• Court: Georgia Supreme Court

150 S.E. 208

169 Ga. 333

ÆTNA LIFE INS. CO. et al. v. CARROLL. ^[*]

No. 7095.

Supreme Court of Georgia

October 19, 1929

Syllabus by the Court.

By section 14 of the Georgia Workmen's Compensation Act (Laws 1920, p. 177), "no compensation shall be allowed for any injury or death due to the employee's willful misconduct, *** or willful failure or refusal to *** perform a duty required by statute."

(a) The general rule is that mere violations of instructions, orders rules, ordinances, and statutes, and the doing of hazardous acts, where the danger is obvious, do not, without more, as a matter of law, constitute willful misconduct; and where the misconduct consists of a failure or refusal to perform a duty required by statute, a bare failure or refusal, without more does not constitute a willful failure or refusal to perform such duty.

(b) Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute willful misconduct or willful failure or refusal to perform a duty required by statute, and will not defeat recovery of compensation by the employee or his dependents.

(c) Willful misconduct, or willful failure or refusal to perform a duty required by statute, is more than negligence, or even gross negligence; it involves conduct of a criminal or quasi criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.

(d) Willful misconduct includes all conscious or intentional violations of definite law or rules of conduct, as distinguished from inadvertent, unconscious, or involuntary violations.

(e) Where a man traveling by automobile on a public highway knowingly approached a railroad crossing without having such vehicle under immediate control, and at a greater speed than 10 miles per hour, in violation of section 2 of the Act of August 15, 1921 (Laws 1921, p. 256), such conduct being under section 12 of said act (Laws 1921, p. 260) made a misdemeanor and punishable as such, and where such traveler was killed in a collision between his automobile and a freight train at said crossing, such violation of said statute being the proximate cause of his death, he was guilty of willful misconduct, and of willful failure or refusal to perform the duty required of him by the statute, in so operating his automobile in approaching the railroad crossing, and his widow was not entitled to compensation for his death in such circumstances.

The single commissioner and the Industrial Commission made a finding that the employee was guilty of willful misconduct within the meaning of section 14 of the Workmen's Compensation Act (Laws 1920, p. 177).

(a) Whether the employee was guilty of willful misconduct, or was guilty of willful failure or refusal to perform a duty imposed upon him by statute, were questions of fact for the Industrial Commission, and the findings of the commission upon these questions are final, and will not be disturbed where there is evidence to support them.

(b) There was evidence to sustain the findings of the commissioner and the commission upon these questions.

The decision of Carroll v. Ætna Life Ins. Co., 39 Ga.App. 78, 146 S.E. 788, is reversed.

Certiorari from Court of Appeals.

Proceeding under the Workmen's Compensation Act by Mrs. W. H. Carroll, claimant, for the death of W. H. Carroll, her husband, opposed by the Atlantic Ice & Coal Company, employer, and the Ætna Life Insurance Company, insurer. Judgment by the superior court, affirming award of the Industrial Accident Commission, denying compensation, was reversed by the Court of Appeals (39 Ga.App. 78, 146 S.E. 788), and the insurer and employer bring certiorari. Reversed.

The following is substantially the opinion of the Industrial Commission:

Mrs. Wm. H. Carroll made application for compensation for the death of her husband, Wm. H. Carroll. He was secretary, assistant treasurer, and assistant general manager of the Atlantic Ice & Coal Company. Compensation insurance was carried by the employer in the Ætna Life Insurance Company.

Carroll had held the position as secretary and assistant treasurer for some time, but had assumed the duties as assistant manager only a short while before his death. He was paid a lump salary of $625 per month. He met his death on July 24, 1925. The employer conducted business operations in several states, including Florida. On July 23 Carroll was instructed to make a trip to Jacksonville, Fla., for the purpose of attending to special business for the company in the line of his duties as assistant general manager. The expenses of the trip were to be borne by the company. He expected to make the trip by rail, but decided to travel in his automobile. The change in transportation was approved by his superior officers. He left Atlanta on the morning of July 24, dined in Ft. Valley, Ga., and at about 6 o'clock that afternoon was instantly killed in a collision with a freight train at Guisey's Crossing, in Bacon county. This crossing was near Alma, and on the Dixie Highway from Atlanta to Jacksonville.

The insurance carrier denied liability, on the ground that Carroll's death was the result of his willful misconduct, consisting of a violation of section 2 of the Act of August 15, 1921 (Acts 1921, pp. 255, 256; 8 Park's Code Supp. 1922, § 828 (uu4), which is as follows: "Upon approaching any intersecting highway, bridge, railroad crossing, dam, sharp curve, dugway or deep descent, or in traversing such intersecting highway, bridge, railroad crossing, dam, sharp curve, dugway or descent, the operator of a motor vehicle or motorcycle, shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed than ten miles per hour." A violation of this law is made a penal offense. Laws 1921, p. 260, § 12; 11 Park's Code Supp. 1922, § 528(j). This defense raised two questions--one of fact and one of law: First, did Carroll's death result from a violation of said statute? Second, if it did, does such act bar his dependents from compensation?

1. The speed of Carroll will not be presumed unlawful. New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 686, 118 S.E. 786. The burden of proving an unlawful rate of speed is upon the carrier. Ga. Laws 1920, p. 177, § 14. The act of 1921 demands two things on the part of the operator of a motor vehicle while approaching a railroad crossing: He "shall at all times have said vehicle under immediate control," and "shall not operate said vehicle at a greater speed than ten miles per hour." It may be remarked in passing that the driver must maintain immediate control and reduce speed to 10 miles per hour, not only while on a railroad crossing, but on approaching such crossing. Guisey's Crossing is about 250 miles from Atlanta, 150 miles from Macon, and between Nicholls and Alma. Carroll was traveling from Nicholls towards Alma. The Dixie Highway, from Nicholls to Alma, is a well-surfaced road of sand and clay construction. About half a mile from the crossing, the highway passes over a bridge and gradually ascends to the crest of a hill about 200 yards distant from the crossing. The railroad crossing is not visible from the highway until the crest of the hill is reached, but according to all the witnesses it is clearly visible from that point. The highway runs straight from the bridge, while the Atlanta, Birmingham & Atlantic Railroad makes a considerable curve and crosses the highway at Guisey almost at a right angle. Guisey is a flag station; near the crossing is the depot, with a red tile roof; and at the crossing on the side toward Alma is a "stop, look, and listen" sign.

The accident occurred about 6 o'clock in the afternoon, long before sundown. Carroll was seen by several persons between the bridge and the crossing, and all stated that his car was going about 50 miles per hour. The speed of Carroll before reaching the crossing is only a circumstance, since none of these witnesses saw the car when it actually approached the crossing. Mill Holmes, who lived about 150 yards from the crossing, said that from the porch of her home she saw the car when it was hit by the freight train, and it was going slow when she saw it, for it was just about on the railroad. On cross-examination, she said she could not undertake to say how fast the car was traveling, for she did not know. The engineer of the freight train testified that he blew for the crossing about 250 yards away, and that he was running approximately 20 miles an hour. After he turned the curve the depot prevented him from seeing the crossing until he was nearly upon it. When he first observed Carroll, the car was about 50 feet from the crossing, traveling at a speed of around 50 miles per hour. The engine was then almost upon the crossing; the engineer applied his air brakes, while Carroll applied the brakes to his car. Carroll's car skidded about 30 feet, and was near the middle of the track when struck by the engine. The force of the impact was sufficient to derail the tender of the freight engine. The interest of the engineer would naturally lead him to minimize the speed of the train and magnify the speed of the automobile. Other witnesses, however, without any interest in the case, testified to the skid marks. These showed that the car traveled as much as 30 feet with locked wheels before it reached the rail. A careful consideration of the evidence and all the facts and circumstances impels the finding that Carroll did not have his car under control as contemplated by the statute, and that his speed in approaching the crossing was considerably in excess of 10 miles per hour. It must also be...