Herman v. Aetna Cas. & Sur. Co.
| Decision Date | 14 July 1944 |
| Docket Number | 30539. |
| Citation | 31 S.E.2d 100,71 Ga.App. 464 |
| Court | Georgia Court of Appeals |
| Parties | HERMAN v. AETNA CASUALTY & SURETY CO. et al. |
Rehearing Denied July 25, 1944.
Syllabus by the Court. [Copyrighted Material Omitted]
Chas G. Bruce, of Atlanta, for plaintiff in error.
Martin Martin & Snow, of Macon, for defendants in error.
The plaintiff filed with the State Board of Workmen's Compensation a claim against M. S. Jamerson, doing business as Atlanta Sand & Supply Co., as employer, and Aetna Casualty & Surety Co., as insurance carrier, for compensation for the death by electrocution of her husband, John W. Herman, Jr., alleged to have arisen out of and in the course of his employment as superintendent of a sand-mining plant in Crawford County. The defendants admitted that the deceased was employed by the defendant employer at the time of his death, but contended that death resulted from wilful misconduct and a disregard of safety rules promulgated by the deceased, himself, for observance by the personnel of the plant, which safety rules required the wearing of rubber gloves and boots at all times when starting, operating or working with or upon the electric motors in use at the plant. It was not contended that the rules were such as were required by law to have the approval of the compensation board, but that the death resulted from "wilful misconduct" and the "wilful failure or refusal to use a safety appliance," as contemplated by the Code, § 114-105, the defendants insisting that the statute does not require approval by the board of a safety appliance. The plaintiff established her dependency and rested, whereupon the defendants assumed the burden of proving their claimed exemption from liability. The evidence before the hearing director developed the following facts: That the deceased was found dead lying face downward over the smaller of two electric motors in a pump house, with the motor running; that the motor was used to propel a hoisting machine and operated upon 550 volts of electricity; that when found his hands and feet were bare; that rubber gloves and boots were both within accessible distance; that no one saw Mr. Herman meet his death; that the motor had been, to the knowledge of the decedent, defective in that it was shorted or grounded and employees had been shocked when attempting to start and operate the motor; that because of the great extent that water was used in the mining process, the floor and equipment of the pump house remained wet or damp most of the time; that the deceased had continually cautioned each worker to wear the rubber gloves and boots each time he performed any service in connection with the electric motors. For the lack of eyewitnesses it is not shown what task the deceased was performing when he met his death. According to the testimony, he could have been operating the switch that started the motor, or it could have been that he was reaching over the motor to throw a lever that engaged the clutch to the motor. The claimant insisted that the probability was that he was attempting to throw the clutch lever, contending that the wearing of gloves and boots was not ordinarily necessary to safely operate the clutch lever. The hearing director found as a matter of fact that the deceased was electrocuted because of his wilful misconduct and his wilfully failing or refusing to employ the safety appliances of rubber gloves and boots, the use of which he had constantly stressed upon his subordinates. Compensation was denied, and the full board sustained the findings of the hearing director. The superior court affirmed the action, and the claimant excepted.
1. While the evidence might not demand a finding that the decedent came to his death by electrocution, resulting from his wilful misconduct and wilful failure or refusal to use safety appliances (the gloves and boots), it authorized such a finding. The body was found lying across an electric motor operating at the time, and there were no coverings on the feet and hands of the body. The evidence showed that electrocution is probable where a bare portion of a human body contacts an instrument electrically charged with 550 volts while another portion of the body is in contact with water or dampness containing foreign chemicals (conductors of electricity) and completing a circuit. It was shown without dispute that all of the subordinate employees had been constantly ordered by the deceased to wear the gloves and boots whenever working about the motors. So it could not be doubted that he was fully aware of the danger incident to working with the motors. And it was shown that both a pair of gloves and a pair of boots were in close proximity. The director had to reach a decision on the facts, and he was justified in concluding as he did rather than finding in favor of the contentions of the claimant. Whether the employee was guilty of wilful misconduct (or other acts of forfeiture) as contemplated by the statute is a question of fact for the compensation board; and the findings of the director and the board upon the questions are final, and will not be disturbed where there is evidence to support them. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208. In that case wilful misconduct and violation of a statute were claimed. The "wilful failure or refusal to *** perform a duty required by statute" is one of several exemptions provided for by the Code,§ 114-105, and the language of the Aetna Life Ins. Co. case treating with statute violations was necessary and appropriate to uphold in that particular case the finding that the alleged wilful violation of the statute could fall within the exemption contemplated by the law. The principles applicable to a determination as a matter of law of what are acts in disregard of the duties imposed by a statute are not necessarily the same principles that govern a determination of what constitutes a wilful failure or refusal to use a safety device. Therefore, the excerpts from the Aetna case relied on by the claimant do not establish the narrow limitation contended for on the alleged wilful acts of the instant case. Omitting the other acts of exemption and forfeiture given in the Code, § 114-105, we...
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