Echols v. Chattooga Mercantile Co

• Decision Date: 13 June 1946
• Docket Number: No. 31260.,31260.
• Parties: ECHOLS. v. CHATTOOGA MERCANTILE CO.
• Court: Georgia Court of Appeals

38 S.E.2d 675

ECHOLS.

v.CHATTOOGA MERCANTILE CO.

No. 31260.

Court of Appeals of Georgia,

Division No. 2.

June 13, 1946.

Syllabus by the Court.

1. Where an employer who has never had as many as ten employees in his employ, elects to come within the terms of the Workmen's Compensation Act, and complies with the requirements of the law, a person subsequently employed will be presumed, under the terms of Code, § 114-207, to have elected to come within the terms of the act, nothing to the contrary appearing.

2. "Where a servant is injured by a fellow servant or superior employee in a dispute, not provoked by the injured servant, arising over the conduct of the master's business, the injury may be the result of an accident, in so far as the injured employee is concerned."

3a. Code, § 114-103 properly construed means that the rights of the employee under the act shall be exclusive only as against the employer.

3b. An employee coming within the terms of the Workmen's Compensation Act is not precluded thereby from maintaining an action against a third party joint tortfeasor who inflicted the injuries complained of.

3c. The general manager of a company is not such an identical party with the company as to prevent an action against him individually for a wilful assault upon an employee where the assault grew out of a dispute over the conduct of the master's business and the master was under the Workmen's Compensation Act.

Error from Superior Court, Chattooga County; C. H. Porter, Judge.

Action by R. E. Echols against the Chattooga Mercantile Company and J. E. Berry, manager of the Chattooga Mercantile Company, to recover for injuries allegedly inflicted on the plaintiff by J. E. Berry. The court directed a verdict for defendants on ground that plaintiff's remedy was under the Workmen's Compensation Act, and overruled his motion for new trial, and he brings error.

Judgment affirmed in part and reversed in part.

R. E. Echols brought an action for damages resulting from personal injuries, alleged to have been inflicted by J. E. Berry, against the Chattooga Mercantile Company and its manager J. E. Berry in the Superior Court of Chattooga County. It is unnecessary to state the allegations of the petition and answer as the case went to trial before a jury on a stipulated set of facts on the defendants' plea in bar. The stipulated facts are that: "It is agreed between counsel that at no time has Chattooga Mercantile Company had as many as ten employees; that on or about May 27, 1943, the defendant, Chattooga Mercantile Company, elected to come under the provisions of the Workmen's Compensation Act of Georgia and in order to effectuate said election, a notice to the Industrial Board [State Board of Workmen's Compensation] signed by the defendant, Chattooga Mercantile Company, and each of the employees in its employment at that time was sent to the Industrial Board of Georgia, at Atlanta, Georgia, and at the same time a copy of said notice, together with the signature of the employer and all employees, was duly posted in a conspicuous place in the place of business of the Chattooga Mercantile Company and remained so posted until on or about the 1st day of March, 1945, when the same was removed by the painters redecorating the said building and the same has not been replaced since said date. That R. E. Echols did not sign the notice and was never notified of it and never saw it where it was posted. * *. * and that R. E. Echols went to work at the Chattooga Mercantile Company in May, 1944, and worked until March 26, 1945."

The court directed a verdict for the defendants upon the plea in bar. The plaintiff filed his motion for a new trial, as amended, which was overruled, and he now excepts.

Rosser & Rosser, of LaFayette, and Graham Wright, of Rome, for plaintiff in error.

Matthews, Owens & Maddox, of Rome, for defendant in error.

FELTON, Judge.

1. Under the facts of the stipulation, the Chattooga Mercantile Company complied with the requirements of the law with regard to electing to be bound by the terms of the Workmen's Compensation Act to the letter. The plaintiff did not join in this election as he was not then in the employ of the firm. Code, § 114-207, provides: "When an employer and his employees elect to be bound by this law, the election shall continue until recalled by joint action of employer and employees and shall be effective after notice is given to the Department of Industrial Relations [State Board of Workmen's Compensation], and shall include employees subsequently employed unless they elect to reject the law." It is true that where an employer has at no time had in his employ as many as ten employees there is no presumption, as provided for in Code, § 114-201, that either the employer or the employees have accepted the provisions of the Workmen's Compensation Act, Bussell v. Dannenber Co., 34 Ga.App. 792, 132 S.E. 230; Employers Liability Assurance Corporation v. Hunter, 184 Ga. 196, at page 199, 190 S.E. 598, if, however, the employer and its employees, in compliance with the requirements of the law, have by joint action elected to come within the act, a subsequent employee is presumed to have elected to accept the provisions of the act where it does not appear that he has elected to reject it. The Chattooga Mercantile Company and its employees had elected to come within the terms of the act. The plaintiff was subsequently employed and so far as the record shows he never rejected the terms of the act. The terms of Code, 114-207, quoted above, clearly, therefore, place him within the terms of the act. We express no opinion as to what the status would be of a person employed at the time the election was made to come within the terms of the act, but who neither expressly accepted or rejected the act. The General Assembly made no provision for such a situation. It did, however, expressly provide for the situation presently under consideration, and under the terms of Code, § 114-207, and the facts of the case as revealed by the record we are of the opinion that the court correctly directed a verdict on the plea in bar as to the defendant, Chattooga Mercantile Company. This question, insofar as we have been able to ascertain, has not arisen before in this State. We find, however, our ruling in accord with the rulings of other states having similar workmen's compensation acts. "Under perhaps the majority of the elective compensation acts, the election on the part of the employee is negative, that is, after the employer has elected to come within the act the employee automatically comes under its operation unless he gives statutory notice that he will not be bound by it, and this rule is applicable where the employer elects to make the act applicable to employees not otherwise subject to the act." 71 C.J. p. 522, § 264; Fostner v. Morawitz, 215 App.Div. 176, 213 N.Y.S. 202.

2. The plaintiff contends that under the allegations of the petition the assault made upon the plaintiff was not an accident within the meaning of the Workmen's Compensation Act and that therefore was not covered by the terms of the act and hence his rights against the Chattooga Mercantile Company were not abrogated by the act and he could bring an action at common law. None of the cases cited by the plaintiff will support this contention as we will point out later. These cases are: Kimbro v. Black & White Cab Co., 50 Ga.App. 143, 177 S.E. 274, and cases cited; Liberty Mutual Insurance Co. v. Reed, 56 Ga.App. 68, 192 S.E. 325; and Covington v. Berkeley Granite Corporation, 182 Ga. 235, 184 S.E. 871. In the case of Hardware Mutual Casualty Co. v. Spray-berry, 195 Ga. 393, 24 S.E.2d 315, 316, the Supreme Court in defining the meaning of the word "accident" makes this statement: "In Reid v. Lummus Cotton Gin Co., 58 Ga.App. 184, 185, 197 S.E. 904, 905, it is written: 'The word "accident, " as used in the act, includes every injury except diseases not naturally growing out of injuries arising out of and in the course of employment, injuries caused by the willful act of a third person directed against such employee for reasons personal to him, and willful misconduct on the part of the employee; and the act precludes actionat common law or otherwise. Ga.L.1920, pp. 167, 176, § 12; Horn v. Planters Products Co., 40 Ga.App. 787, 151 S.E. 552; Teems v. Enterprise Manufacturing Co., 41 Ga.App. 708, 154 S.E. 466; Berkeley Granite Corporation v. Covington, 183 Ga. 801-807, 190 S.E. 8; Hockmuth v. Perkins, 55 Ga.App. 649, 191 S.E. 156."' This is a clear expression of approval by the Supreme Court of those classes of injuries which this court has enumerated as the classes not coming within the terms of the act, and under the ruling of Covington v. Berkeley Granite Corporation, 182 Ga. 235, 184 S.E. 871, an employee sustaining injuries of these classes would not be precluded from pursuing his common-law remedies against the parties causing such injuries. The plaintiff's injuries obviously do not come within the class of disease, nor is there evidence of wilful misconduct on the part of the plaintiff, and, therefore, the case would not come within the first or third class enumerated in the Lummus case, supra, nor are we able to place his injuries in the second class when we consider the cases which involve this class of injury. In McLaughlin v. Thompson, Boland & Lee, Inc., 72 Ga.App. 564, 34 S.E.2d 562, 563 it was said: "Where a servant is injured by a fellow servant or superior employee in a dispute, not provoked by the injured servant, arising over the conduct of the master's business, the injury may be the result of an accident, in so far as the injured employee is concerned. Horowitz on Workmen's Compensation, p. 86." Under this ruling, therefore, the plaintiff in this case does not bring himself within the second class. The injuries which he sustained were clearly the result of an accident within the terms of the Workmen's Compensation Act, and being so, his...