Flint Electric Membership Corp. v. Posey

• Decision Date: 11 February 1949
• Docket Number: No.3226l.,3226l.
• Citation: 51 S.E.2d. 869
• Parties: FLINT ELECTRIC MEMBERSHIP CORPORATION. v. POSEY.
• Court: Georgia Court of Appeals

51 S.E.2d. 869

FLINT ELECTRIC MEMBERSHIP CORPORATION.

v.POSEY.

No.3226l.

Court of Appeals of Georgia,

Division No. 1.

Feb. 11, 1949.

Syllabus by the Court.

1. Under the circumstances shown in the present case, the name of the defendant would carry with it a presumption that the defendant is lawfully organized and operating as an electric membership corporation, unless and until the contrary may be shown, and as such, is not an employer within the definition of the term as used in the Workmen's Compensation Law.

2. Under the facts as plead in the present action no presumption arose that the case came under the Workmen's Compensation Law, and the plaintiff need not affirmatively show wherein the case does not come under the Workmen's Compensation Law in order to maintain a different action.

3. The trial judge did not err in overruling the defendant's demurrers to the petition based on the ground that the action was one coming under the provisions of the Workmen's Compensation Law.

Error from Superior Court, Taylor County; T. Hicks Fort, Judge.

Action by Mrs. Thelma McCrary Posey against the Flint Electric Membership Corporation for damages for the death of her minor son. To review a judgment overruling demurrers, defendant brings error.

Affirmed.

Smith, Elliott & Swinson, of Columbus, J. R. Lunsford, of Butler, and Haas & Hurt, of Atlanta, for plaintiff in error.

A. C. Felton III, of Montezuma, and Dan S. Beeland, of Columbus, for defendant in error.

SUTTON, Chief Judge.

This is an action for damages instituted in Taylor Superior Court by Mrs. Thelma McCrary Posey against the Flint Electric Membership Corporation on account of the death of her minor son, Terrell Floyd Posey, who, according to the allegations of the petition, was killed while in the employ of defendant due to its negligence, and upon whom she was dependent and who contributed to her support. The defendant filed general and special demurrers to the petition, and the plaintiff amended her petition to meet certain special demurrers. All demurrers were overruled by the trial judge, and the defendant excepted. The controlling question here presented is whether or not this action comes within that class of cases for which an exclusive remedy is provided by the Workmen's Compensation Law, Code, Title 114.

1. By the provisions of the Workmen's Compensation Law, Code Ann.Supp. § 114-101, an employer is defined as follows: " 'Employer' shall include the State of Georgia and all departments thereof, any municipal corporation within the State, and any political division thereof, and any individual, firm, association or corporation engaged in any business operated for gain or profit [italics ours], except as hereinafter provided, and the receiver or trustee of the same, and the legal representative of a deceased employer, using the service of another for pay. If the employer is insured this term shall include his insurer as far as applicable." Code Ann.Supp. § 114-107 provides, in part, that "This Titleshall not apply to * * *; nor to any persons, firm, or private corporation, including any public service corporation, that has regularly in service less than 10 employees in the same business within this State, unless such employees and their employers voluntarily elect to be bound." The defendant in the petition in this case is named as the Flint Electric Membership Corporation, and it is alleged that the defendant is a Georgia corporation, with its principal office and place of business in Reynolds, Taylor County, Georgia. Title 34A of the Code Ann.Supp., Ga.L.1937, p. 644, and amendments thereto, provided for the organization and operation of cooperative and nonprofit electric membership corporations. Certain sections of this law are as follows: Code Ann.Supp. § 34A-103: "Cooperative, nonprofit, membership corporations may be organized under this Chapter for the purpose of engaging in rural electrification by any one or more of the following methods: (1) The furnishing of electric energy to persons in rural areas who are not receiving electric service from any corporation subject to the jurisdiction of the Georgia Public Service Commission, or from any municipal corporation. (2) Assisting in wiring of the premises of its members or the acquisition, supply, or installation of electrical or plumbing equipment therein. (3) The furnishing of electric energy, wiring facilities, electrical or plumbing equipment or services to any member corporation organized under this Chapter." Code Ann.Supp. § 34A-10S: "The words 'electric membership corporation' shall not be used in the corporate name of corporations hereafter organized under the laws of this State, or authorized to do business herein, other than those organized pursuant to the provisions of this Chapter." Code Ann.Supp. § 34A-115: "Each corporation shall be operated without profit to its members, but the rates, fees, rents or other charges for electric energy and any other facilities, supplies, equipment, or services furnished by the corporation shall be sufficient at all times: (1) To pay all operating and maintenance expenses necessary or desirable for the prudent conduct of its business and the principal of and interest on the obligations is sued or assumed by the corporation in the performance of the purpose for which it was organized, and (2) For the creation of reserves." Nonprofit organizations do not come under the definition of employer as defined in the Workmen's Compensation Law. Code Ann.Supp. § 114-101, supra. In Hall v. Georgia Milk...