Gay v. Greene
| Decision Date | 16 November 1954 |
| Docket Number | No. 35256,No. 1,35256,1 |
| Citation | 91 Ga.App. 78,84 S.E.2d 847 |
| Parties | GAY v. GREENE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The exception to the judgment sustaining the plaintiff's demurrer to a paragraph of the answer is prematurely taken.
2. An employee, who has been injured in an accident arising out of and in the course of his employment and who has accepted benefits provided pursuant to the Workmen's Compensation Law, is not thereby precluded from bringing an action against a physician furnished by the employer, for malpractice in treating the injuries resulting from the accident, where the suit is brought for the use of the employer, as self-insurer, to the extent of the compensation and medical expense paid by it.
David F. Greene was accidentally injured while working for National Lead Company. He was carried for treatment to the office of Dr. B. B. Gay, who was employed by National Lead Company. Dr. Gay accepted Greene as a patient, operated upon his injury, and was paid by the company for services rendered to Greene. National Lead Company, as a self-insurer, also paid Greene $1,856.87 as conpensation awarded pursuant to the Workmen's Compensation Law for the injury, as having arisen out of and in the course of Greene's employment, and paid medical expenses of $970.95 for treatment of Greene's injuries. Claiming that Dr. Gay's negligent treatment contributed materially to his permanent injury, Greene sued Dr. Gay, seeking recovery for the use of National Lead Company to the extent of the compensation and medical expenses paid by it, with the remainder to the plaintiff, Greene.
The exception here is to the judgment of the court overruling general demurrers to the petition, in which the foregoing facts appear, and sustaining a demurrer to a paragraph of the answer.
John A. Dunaway, Wm. H. Mewbourne, Atlanta, for plaintiff in error.
Northcutt & Edwards, Atlanta, for defendant in error.
1. The judgment sustaining the plaintiff's demurrer to a paragraph of the answer may not be excepted to until a final judgment has been rendered in the case, and hence will not be reviewed. Code Ann. § 6-701; Clay v. Merchants Mutual Credit Corp., 86 Ga.App. 832, 72 S.E.2d 833.
2. The defendant contends that the court erred in overruling his demurrer to the petition, not because of its failure to set out a case of malpractice, but because the plaintiff was awarded workmen's compensation and accepted medical treatment paid for by his employer. According to Code, § 114-502, 'The employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of this section, but the consequences of any such malpractice shall be deemed part of the injury resulting from the accident and shall be compensated for as such.' It is argued that 'damages' are synonymous in law with 'compensation;' that at common law a negligent employer was liable in damages both for the original injury and for the malpractice of the employee's attending physician, and hence that the plaintiff, having received workmen's compensation, in that nature of 'damages,' from his employer covering both the injury and the consequences of any malpractice, has received full satisfaction of his causes of action for the original injury and for the consequences of the alleged malpractice in the treatment of that injury.
This argument falls with its premise. Workmen's statutory compensation is not in the nature of damages awarded for injury and is not intended to give full satisfaction for an injury; it is more like benefits provided ex contractu under a policy of insurance. Hotel Equipment Co. v. Liddell 32 Ga.App. 590, 124 S.E. 92. Compensation is not paid in settlement of a tort claim, for an employer is liable under the Workmen's Compensation Law without regard to its fault or negligence; and, as to the employee, the employer cannot be considered as a joint tort-feasor with a third person whose negligence may cause or aggravate the employee's injury. Williams Bros. Lumber Co. v. Meisel, 85 Ga.App. 72, 74(3), 68 S.E.2d 384.
Code, § 114-103 provides that the rights and remedies granted to an employee where he and his employer have accepted the provisions of the act shall exclude all other rights or remedies of such employee, at common law or otherwise, on account of an injury by accident arising out of and in the course of the employment. But this section excludes only the employee's 'other rights' against the employer, and persons other than the employer are not to have the benefit of the act. Athens Ry. & Electric Co. v. Kinney, 160 Ga. 1, 127 S.E. 290; Hotel Equipment Co. v. Liddell, supra.
Code, § 114-403 is as follows: We have set out the section as it existed before the amendment of 1937, as that amendment was held to be unconstitutional, Lloyd Adams, Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 10 S.E.2d 46, and the section as it existed before the 1937 amendment is still in effect. Maryland Casualty Co. v. Stephens, 76 Ga.App. 723, 47 S.E.2d 108; Liberty Mutual Insurance Co. v. Crist, 86 Ga.App. 584, 71 S.E.2d 910. This section does not vest title to a claim against a third person for injury to an employee in the employer or insurance carrier. Travelers Ins. Co. v. Ga. Power Co., 51 Ga.App. 579 (1-c), 181 S.E. 111; Lloyd Adams, Inc., v. Liberty Mutual Ins. Co., supra. This section circumscribes the employee's right to recover both compensation from the employer and damages from the third-party tort-feasor, but it confers no benefits upon the third person. Liberty Mutual Ins. Co. v. Crist, 86 Ga.App. 584, 589, 71 S.E.2d 910, supra.
The defendant urges that, as a physician employed by the employer to furnish medical treatment to injured employees, he is not a 'person other than the employer', against whom a 'legal liability * * * to pay damages in respect' to a compensable injury may exist. It is said that the physician is always involved in a compensation case, since the medical treatment is furnished by the employer as a part of the statutory compensation plan. But an employee's common law rights are preserved, even against an employer's...
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