Beck v. Brower

• Decision Date: 11 February 1960
• Docket Number: No. 38157,No. 2,38157,2
• Citation: 101 Ga.App. 227,113 S.E.2d 220
• Parties: W. T. BECK v. S. E. BROWER
• Court: Georgia Court of Appeals

Page 220

113 S.E.2d 220

101 Ga.App. 227

W. T. BECK v. S. E. BROWER.

No. 38157.

Court of Appeals of Georgia, Division No. 2.

Feb. 11, 1960.

Ray Y. Cross, Albany, for plaintiff in error.

H. G. Rawls, D. C. Campbell, Jr., Albany, for defendant in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1. It is the settled law of this State that Code, § 114-105 barring an employee from the benefits of the workmen's compensation law where the injuries result from his wilful misconduct, or wilful failure or refusal to perform a duty required by statute places the bruden on the employer to show that the breach was wilful, and that it takes something more than mere negligence, or even gross negligence, to carry this burden, although the proof that the conduct was wilful and wanton is carried by a preponderance of evidence so indicating.

2. The controlling case on this question as it relates to violation of traffic laws, Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208, is grounded on two reasons; one being that a driver who knowingly approaches a railroad crossing at a speed in excess of the lawful limit, which excessive speed proximately causes his death, is guilty of criminal misconduct beyond mere negligence; the other being that where the Board of Workmen's Compensation finds such conduct to be wilful misconduct, that finding is binding upon the appellate tribunals. Had the board in the Carroll case found that the conduct of the employee there was not wilful misconduct but resulted from simple negligence, the wording of the decision is such as to indicate that the finding, too, would be conclusive. 'The claimant is entitled to recover unless the employer has convinced the full board by a preponderance of the evidence that the claimant's injuries and disability proximately resulted from his own wilful misconduct in the commission of the unlawful act of intentionally operating his automobile at a greatly accelerated rate of speed.' Borden Co. v. Dollar, 96 Ga.App. 489, 491, 100 S.E.2d 607, 609. Where the evidence shows facts which would support equally the conclusion that the employee did, or did not, wilfully violate the traffic law in question, the employer has not carried his burden by a preponderance of the evidence. Where, on the other hand, the facts found demand the conclusion that wilful misconduct of an employee in driving a heavily loaded truck greatly in excess of the speed limit was such that the truck was out of his control, and his injury or death is due solely to this fact, he cannot recover. Hall v. Kendall, 81 Ga.App. 592, 59 S.E.2d 421. In the Hall case, however, there were two judges dissenting on the ground that even the facts shown there left an issue to be decided as a matter of fact by the Board of Workmen's Compensation and not as a matter of law by the court. The dissenting opinion in the Hall case was in effect followed in Reid v. Raper, 86 Ga.App. 277, 71 S.E.2d 735, where it was held that merely because the claimant has violated a traffic statute, and merely because...