Covington v. Berkeley Granite Corp.*, 10927.

• Decision Date: 24 March 1936
• Docket Number: No. 10927.,10927.
• Citation: 184 S.E. 871,182 Ga. 235
• Parties: COVINGTON . v. BERKELEY GRANITE CORPORATION.*
• Court: Georgia Supreme Court

182 Ga. 235

184 S.E. 871

COVINGTON .

v.BERKELEY GRANITE CORPORATION.^*

No. 10927.

Supreme Court of Georgia.

March 24, 1936.

Syllabus by the Court.

Where, as the result of an employer's negligence, an employee sustained an injury which caused an "occupational disease, " if the injury was not the result of an accident and was not compensable under the Workmen's Compensation Act, the employee is not prevented by the terms of the act from maintaining against his employer an ordinary or common-law action to recover damages for such injury and disease.

Certified Question from Court of Appeals.

Suit by J. J. Covington against the Berkeley Granite Corporation. To review the judgment, plaintiff brings error to the Court of Appeals, which certifies a question.

Question answered.

The Court of Appeals certified the following question: "Section 12 of the Georgia workmen's compensation act (Ga.Laws 1920, p. 167) provides as follows: 'The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this Act respectively to pay and accept 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.' Section 13 of the same act reads as follows: 'Be it further enacted, That nothing in this Act shall be construed to relieve any employer or employee from penalty for failure or neglect to performany statutory duty.' Should the language of section 12, considered in the light of the language of section 13 and of the act as a whole and of the legislative intent in passing the act, be construed as excluding the right of such an employee to bring an ordinary action for damages against his employer for damages to the employee, sustained by him as the result of the employer's negligence in failing to warn him (the employee) of the dangers which were incident to his employment, such dangers being unknown to the employee but known to the employer (and the failure to so warn the employee being in violation of section 66-301 of the Code of 1933); and where such injuries caused the employee to contract silicosis, an occupational disease; and where the injuries were not the result of an accident and were not compensable under the provisions of the workmen's compensation act?"

Howell & Post, of Atlanta, for plaintiff in error.

Bryan, Middlebrooks & Carter, John A. Dunaway, and Yantis C. Mitchell, all of Atlanta, for defendant in error.

ATKINSON, Justice.

The caption of the Workmen's Compensation Act is as follows: "An Act to prevent industrial accidents; to provide medical and surgical care for injured employees; to establish rates of compensation for personal injuries or death sustained by employees in the course of employment; to provide methods of insuring the payment of such compensation; to create an Industrial Commission for the administration of this Act and to prescribe the powers of such commission, and for other purposes." Ga.Laws 1920, p. 167. Section 2(d) provides: " 'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident, nor shall 'injury' and 'personal injury' include injury caused by a wilful act of a third person directed against an employee for reasons personal to such employee or because of his employment." With certain exceptions not here material, section 4 provides that every employer and employee "shall be presumed to have accepted the provisions of this Act respectively to pay and accept compensation for personal injury or death, " unless prescribed notices are given. Section 12 is as follows: "That the rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parent's, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death."

It is apparent from these provisions that the Workmen's Compensation Act cannot be applied except in case of injury "by accident.". It is stated in the question certified that the employee sustained injuries which caused him "to...