Borden Co. v. Dollar

• Citation: 96 Ga.App. 489,100 S.E.2d 607
• Decision Date: 09 October 1957
• Docket Number: No. 2,No. 36834,36834,2
• Parties: The BORDEN COMPANY et al. v. DOLLAR
• Court: United States Court of Appeals (Georgia)

Page 607

100 S.E.2d 607

96 Ga.App. 489

The BORDEN COMPANY et al. v. DOLLAR.

No. 36834.

Court of Appeals of Georgia, Division No. 2.

Oct. 9, 1957.

Syllabus by the Court

While the burden of establishing the defense that the claimant's disability resulted from his own wilful misconduct is on the employer, it need be carried only by a preponderance of the evidence.

When this workmen's compensation case was tried before the single director, the latter made the following finding: 'There is no doubt but that the employee was greatly exceeding the speed limit of 60 mph for the State of Georgia and he was therefore guilty of violating a penal statute of this State. It has been held * * * that when the conduct of the employee was of a quasi-criminal nature such conduct was wilful misconduct, as in the instant case. Properly construed, the appellate courts have held first, that the violation of a penal statute by an employee is of itself wilful misconduct; and second, that the misconduct of the employee and his failure or refusal to discharge the duty imposed upon him by the traffic statute in question were both wilful. I therefore find as a matter of fact and conclude as a matter of law that the violation of a penal statute in the act of said employee in violating the speed limit of the State of Georgia and his failure or refusal to discharge the duty imposed upon him by the traffic statute in question were both wilful and he is therefore not entitled to compensation.' On appeal to the full board the award denying compensation was reversed, and the boare had this to say: 'As to exceeding the speed limit (the defendants) failed to prove intentional or wilful misconduct. The law states a crime is an act, coupled with the intention to commit the act. This may be proved by circumstantial evidence, but it must be such as would exclude every other reasonable hypothesis save that of the guilt of the accused. A crime will not be implied but must be proved beyond a reasonable doubt. In this case there is nothing but doubt as to intention * * * the defendants have failed to carry the burden of proof, to prove that this injury was the result of wilful misconduct or in the commission of an unlawful act, to wit, speeding with the intention to do so.'

The full board made an award in favor of the claimant which was affirmed on appeal to the Judge of the Superior Court of Baker County, and the latter judgment is here assigned as error.

Smith, Field, Doremus & Ringel, Richard D. Carr, H. A. Stephens, Jr., Atlanta, for plaintiffs in error.

B. C. Gardner, Jr., Burt & Burt, Smith, Gardner & Kelley, Albany, for defendant in error.

TOWNSEND, Judge.

Where it affirmatively appears from the award in a workmen's compensation proceeding that it is based upon an erroneous legal...