City of Dalton v. U.S. Fidelity & Guaranty Co., 21089

• Citation: 216 Ga. 602,118 S.E.2d 475
• Decision Date: 09 February 1961
• Docket Number: No. 21089,21089
• Parties: CITY OF DALTON v. UNITED STATES FIDELITY & GUARANTY CO. et al.
• Court: Supreme Court of Georgia

Page 475

118 S.E.2d 475

216 Ga. 602

CITY OF DALTON v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 21089.

Supreme Court of Georgia.

Feb. 9, 1961.

Rehearing Denied Feb. 23, 1961.

Syllabus by the Court

1. It was a question for jury determination as to whether the insurance company

had been negligent in ascertaining the true facts as to the injury of the employee of the city. It was not error to overrule the general grounds of the motion for new trial.

2. The excerpts from the charge (and recharge) of the court, assigned as error were based on the testimony in the case, and were not erroneous for any reason assigned.

Sanford P. Carr, Stafford R. Brooke, Dalton, for plaintiff in error.

Hardin, McCamy & Minor, Carlton McCamy, Adams & McDonald, Dalton, for defendant in error.

HEAD, Presiding Justice.

United States Fidelity & Guaranty Company filed its petition against the City of Dalton and Thomas Holmes to vacate an agreement for the payment of compensation under the Workmen's Compensation Act. On the trial of the case the uncontested facts disclosed that: On Sunday, December 8, 1957 (the date on which Holmes was injured), and prior thereto, Holmes was an employee of the city under the Water, Light & Sinking Fund Commission. On the date of his injury he was performing certain work for the Crown Cotton Mills. The standard form for 'Employer's First Report of Injury' was filed by the commission with its insurer, United States Fidelity & Guaranty Company, being dated December 24, 1957. In response to line one, 'Name of Employer,' the answer was, 'Water, Light & Sinking Fund Commission.' On January 22, 1958, and agreement was entered into for the payment of compensation 'until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of Ga.' The agreement was executed by the injured employee, the Water, Light & Sinking Fund Commission, and the insurer, United States Fidelity & Guaranty Company.

The trial resulted in a verdict and judgment for the insurer setting aside the agreement as to it, and leaving the agreement for the payment of compensation in effect as between the City of Dalton and the employee, Thomas Holmes. The city's motion for new trial as amended was 'overruled' and the exception is to this judgment

1. The judgment of a court may be set aside for fraud, accident, or mistake, unmixed with negligence on the part of the complainant. Code § 110-710. Counsel for the city insist that, under the evidence, United States Fidelity & Guaranty Company was guilty of such negligence as to bar a recovery, and they cite Redwine v. McAfee, 101 Ga. 701, 29 S.E. 428; Young v. Young, 188 Ga. 29, 2 S.E.2d 622; Strozier v. Moss, 211 Ga. 891, 89 S.E.2d 478; and Charles v. Simmons, 215 Ga. 794, 113 S.E.2d 604.

Legal fraud is not limited to the misrepresentation of a material fact made wilfully to deceive, but may result by mistake and innocently, if acted upon by the opposite party. Code § 37-703. In Smith and Shorter v. Mitchell, 6 Ga. 458, 478, Mr. Justice Nisbet quoted from Story's Commentaries as follows: 'Whether a party thus misrepresenting a fact knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial. For the affirmation of what one does not know or believe to be true, is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false.' Justice Nisbet then stated: 'This rule of manifest equity and sound morality, we have seen, was recognized in the British Courts of Law, by some of the most learned of the Common Law Judges. It ought not to be questioned in any court professing to administer justice.' See also Reese v. Wyman, 9 Ga. 430, 439(7); Woodruff & Co. v. Saul, 70 Ga. 271(3); Newman v. H. B. Claflin Co., 107 Ga. 89, 94, 32 S.E. 943; Wellborn v. Johnson, 204 Ga. 389, 396, 50 S.E.2d 16.

In the present case, the undisputed evidence shows that at the time Thomas Holmes was injured he was not working for the Water, Light & Sinking Fund Commission of the city, but had been employed to do certain work for Crown Cotton Mills, and the report by the commission of Holmes' injury was inaccurate, misleading, and untrue. However, the jury would have been authorized to find that the commission's inaccurate and untrue report of the injury was not filed in bad faith, but because of the erroneous concept that, at the time of Holmes' injury, he had been sent by the commission to do the work 'on a swapwork basis.' V. D. Parrott testified, in part, on behalf of the commission: 'I remember it, the assumption that I had at the approximate time, that we had sent Tom and these other boys out to the Crown Cotton Mill to do the work for them, because on...