Blue Bell Globe Mfg. Co. v. Baird

• Decision Date: 25 November 1939
• Docket Number: 27700.
• Citation: 6 S.E.2d 83,61 Ga.App. 298
• Parties: BLUE BELL GLOBE MFG. CO. v. BAIRD.
• Court: Georgia Court of Appeals

6 S.E.2d 83

61 Ga.App. 298

BLUE BELL GLOBE MFG. CO. v. BAIRD.

No. 27700.

Court of Appeals of Georgia, Division No. 2.

November 25, 1939

Rehearing Denied Dec. 9, 1939.

Syllabus by the Court.

Henry Baird brought suit against the Blue Bell Globe Manufacturing Company, claiming damages for injury to his hearing. The plaintiff alleged that he was employed by the defendant company, and that while engaged in the performance of the duties of his employment, which consisted in loading heavy bales of clothing into railroad freight box cars, he was injured as a result of his fellow servants carelessly, on account of their unfitness and incompetency, allowing a large bale of overalls to fall upon him and mash his shoulder and neck and the right side of his head, bursting the ear drum of his right ear, and causing him to entirely lose his hearing in that ear. The plaintiff alleged that his injuries were the result of the defendant's negligence in knowingly employing physically unfit and incompetent employees to aid the plaintiff in loading these heavy bales. The plaintiff further alleged "that at the time he sustained the injury to his ear, that he sustained other injuries that are compensable under the workmen's compensation act, and for the reason that he was working under said act, he has not the right to bring a suit for same at common law, but expressly reserves his right to sue for same under said act in the manner and form therein provided *** that under the workmen's compensation law that the loss of hearing in one ear is not a compensable injury and he has a right to maintain a common law suit for this purpose," that he "has thereby been rendered physically unfit by the said injury to his ear and the total deafness produced thereby for any kind of work, and on this account is unable to secure a job of any kind," and that the defendant "discharged him because his injury incapacitated him to such an extent that he could not do his work in a satisfactory manner."

The defendant demurred to the plaintiff's petition upon the grounds, among others, that no cause of action was set forth against it, and because the petition shows that at the time of the accident and injuries complained of the plaintiff and the defendant were subject to the provisions of the compensation act, and that, under section 114-103 of the Code, the plaintiff is debarred from maintaining and prosecuting this action. The trial judge overruled the demurrer. To this judgment the defendant excepts.

Neely Marshall & Greene, of Atlanta, for plaintiff in error.

Pierce Martin, of Commerce, and Joe Quillian, of Winder, for defendant in error.

STEPHENS Presiding Judge (after stating the foregoing facts).

"The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this Title, agreeing respectively to accept and pay 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." Code, § 114-103. Under the provisions of this section of the compensation law, if the plaintiff was injured by accident growing out of and in the course of his employment, no common-law action against his employer could be maintained.

An injury or personal injury under the act means injury by accident arising out of and in the course of the employment. See Code, § 114-102. With the exception of the specific members dealt with in Code, § 114-406, the amount of compensation which an employee is entitled to receive for an injury is determined by his diminished earning capacity as...