Forrester v. Scott

• Decision Date: 03 January 1972
• Docket Number: 2,No. 46592,3,Nos. 1,46592,s. 1
• Citation: 125 Ga.App. 245,187 S.E.2d 323
• Parties: Ruth T. FORRESTER v. Charles E. SCOTT et al
• Court: Georgia Court of Appeals

Page 323

187 S.E.2d 323

125 Ga.App. 245

Ruth T. FORRESTER v. Charles E. SCOTT et al.

No. 46592.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 3, 1972.

Robert E. Andrews, Gainesville, for appellant.

McClure, Ramsay & Struble, George B. Ramsay, Jr., Toccoa, for appellees.

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

This is a wrongful death case in which the mother of the deceased sued a subcontractor (a partnership) for damages resulting from the negligence of the defendants when her son was killed while employed by a general contractor. The deceased was alleged to be engaged in the performance of his duties at the bottom of a sewer excavation when the sides fell in on him and killed him. His death was allegedly caused solely by reason of the defective and unsafe condition of the construction of the excavation by the defendants, said partnership being a subcontractor of the general contractor. The defendants filed a motion for summary judgment contending that there is now pending before the State Board of Workmen's Compensation a claim by the plaintiff against the general contractor for the death of the deceased; and that the defendants, as subcontractors, are not such third persons against whom a common law action will lie. Attached to the motion for summary judgment is an affidavit of one of the defendants stating that the defendants were subcontractors to the general contractor, engaged in ditch digging and grading; that the deceased was in the employ of the general contractor, and on the date of his death while defendants were engaged in the performance of ditch digging and grading contract for the general contractor, they 'borrowed' and deceased from the general contractor to assist them; the general contractor loaned the deceased to the defendants and the deceased entered the ditch where he was killed which was prepared by the defendants, and that although the deceased was in the general employ of the general contractor, he was, due to the circumstances here at the time of his death, an employee of the defendants. The affiant further stated that the deceased was 'a general servant and employee's of the general contractor loaned to the defendants 'for a particular employment at the time of the accident' and was 'under the supervision and direction of affiant who had the right to direct and control the work . . . to direct him to do other work which was connected with the job and to discharge him from this particular employment either upon completion of the work or for his failure to properly carry out the work.' The parties stipulated that a claim for workmen's compensation was pending against the general contractor and its insurer brought by the mother of the deceased.

The mother filed her affidavit to be considered on the motion for summary judgment in which she contends that her son was the employee of the general contractor at the time of his death which was caused by the 'reckless disregard for the safety of her son,' constituting a wilful tort by the defendants who had negligently constructed said ditch and were negligent in the laying of said sewer lines. The lower court sustained the motion for summary judgment. Held:

1. Affirmed. Under this statement of facts it is clear that the deceased employee though a general employee of Wise, the general contractor, was a 'borrowed employee' of the defendants at the time of his death; that the relationship of employer-employee existed between them at the time of his death; that at such time and on the basis of such relationship he would be entitled to benefits under the Workmen's Compensation Act, thus precluding a common law tort action against the defendants.

In BLI Construction Company v. Knowles, 123 Ga.App. 588, 181 S.E.2d 879, we held that an employee of a subcontractor can maintain a common law action against the principal contractor based on negligence of the principal contractor. However, we do not have that situation in this case as the injury arose out of and in the course of the employment while claimant's deceased was employed as a special employee of the subcontractor, thus bringing the facts of this case under Scott v. Savannah Electric & Power Company, 84 Ga.App. 553, 66 S.E.2d 179 which held as follows:

'While the plaintiff was loaned to the defendant he was as to that company in doing the work, subject to their control, and occupied the position of a special employee, and as such he could only recover for an accidental injury sustained by him arising out of and during the course of his employment only under the compensation law, and he could recover from either employer or from both, as the facts might justify, and in this connection see generally United States Fidelity etc. Company v. Stapleton, 37 Ga.App. 707, 141 S.E. 506. The plaintiff, having elected to proceed against his general employer, the Savannah Machine & Foundry Company, and having recovered compensation from that employer, is now precluded from bringing any common-law action against his special employer, the defendant, based upon any alleged negligence of that employer. The injury sustained was one arising out of and during the course of plaintiff's employment and as a result thereof and is therefore compensable. Where the injury sustained is one compensable under the compensation act and both the employer and employee are subject thereto and have not rejected its provisions, a common-law suit on account of such injury is not maintainable by the employee against his employer, either general or special. Blue Bell, etc. Co. v. Baird, 61 Ga.App. 298, 6 S.E.2d 83. This was an accidental injury arising out of and during the course of the...