Hotel Equip. Co v. Liddell, (No. 15240.)

• Court: Georgia Court of Appeals
• Writing for the Court: BELL
• Citation: Hotel Equip. Co v. Liddell, 124 S.E. 92, 32 Ga.App. 590 (Ga. App. 1924)
• Decision Date: 13 August 1924
• Docket Number: (No. 15240.)
• Parties: HOTEL EQUIPMENT CO. v. LIDDELL.

32 Ga.App. 590

124 S.E. 92

HOTEL EQUIPMENT CO.

v.LIDDELL.

(No. 15240.)

Court of Appeals of Georgia, Division No. 2.

Aug. 13, 1924.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by T. E. Liddell against the Hotel Equipment Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Bryan & Middlebrooks, of Atlanta, for plaintiff in error.

Hewlett & Dennis, of Atlanta, for defendant in error.

BELL, J. On January 18, 1922, Thomas E. Liddell brought suit against Hotel Equipment Company, a corporation, for injuries sustained by him on September 17, 1921, when he was struck by an automobile, alleged to have been owned by the defendant and to have been negligently operated by its employee in and about the defendant's business. The petition alleged that the plaintiff's injuries consisted mainly of the breaking of his left leg, but were generally to his entire body; that he had suffered great pain-and that his injuries would be permanent, and that he had been put to certain expense for surgical treatment, hospital bills, and the like. He laid his entire damage at $25,000.

The defendant denied all of the allegations of the petition except that it was a corporation, etc. The trial resulted in a verdict in favor of the plaintiff for $9,000. The defendant's motion for a new trial, containing the usual general grounds and a number of special grounds, was overruled, and the movant excepted. Exceptions are taken also to a judgment sustaining plaintiff's demurrer to a special plea in bar, to be referred to in the opinion.

1. The defendant specially pleaded in bar that the plaintiff at the time of the injury was an employee of the Standard Oil Company, and that both he and his employer had accepted the terms of the Georgia Workmen's Compensation Act; that on account of his injury and before he filed suit against the defendant therefor the plaintiff claimed and received compensation from his employer in the sum of $637, in full settlement of his claim for compensation due him under the Compensation Act. By reason of these facts it was alleged that the plaintiff had no right to maintain an action against the defendant for the same injury. The plea was stricken on a general demurrer, but it was provided that the order was not intended to prevent the defendant from showing that the plaintiff was paid compensation by his employer under the Compensation Act.

Did the court err in striking the plea? Numerous cases have been cited by both parties. We have examined each of them most carefully, but will not undertake to review them in this opinion. Suffice it to say that in practically every one of the decisions cited by the plaintiff in error in which it was held that an employee, who had elected to claim compensation of his master under a Compensation Act, could not thereafter bring suit against a third person causing the injury, there were provisions in the statute under construction which do not appear in the Workmen's Compensation Act of this state. There are decisions sustaining the right of the employee to sue the third per-son under such circumstances, where the act in the particular state, as is true in this state, did not expressly deny such right. There is one apparent exception to what we have stated, with respect to the cases cited by the plaintiff in error, namely, a decision by the Supreme Court of Appeals of Virginia, to which we will refer a little later.

Section 12 of the Compensation Act of this state (Ga. L. 1920, p. 167) is as follows:

"That the rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of perso'nal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death."

Prior to the amendment of August 16, 1922 (Ga. L. 1922, p. 185), there was no provision in the act for the subrogation of the employer, who had paid compensation for an injury, to the right of the employee against a third person who may have been liable. Such a provision was made by that amendment. Another provision of the amendment is that the employee or beneficiary may take proceedings for damages against the third person responsible for the injury, and also against the employer for compensation, but that the amount of compensation to be had of his employer shall be reduced by the amount of damages recovered.

The cause of action in this case arose prior to the amendment. It is urged by the plaintiff in error, however, that the provision in the amendment for an action against a person other than the employer who brought about the injury should be taken as proof that no such right existed under the original act.

"An expression of the views of the Legislature [in one act or resolution] as to what they thought they had done [in a previous act] * * * is a legitimate source to look to in determining the intention of the Legislature in passing the [previous] act." Georgia Penitentiary Co. v. Nelms, 65 Ga. 67 (1), 69.

There seems to us, however, to be weightier reasons for holding that the original act of 1920 was never intended to prevent an employee, who had received compensation of bis employer under the act, from bringing suit against another person who would have been liable to him for his injury, independently of the act. The original Compensation Act of this state is very similar in most of its terms to that of the state of Virginia. Section 12 of our act is identical with section 12 of the Virginia Act (Laws 1918, c. 400).

In Southern Railway Co. v. United States Casualty Co., 136 Va. 475, 118 S. E. 266, the Virginia Case mentioned above, it was said that "under section 12 * * * the employee to whom compensation was paid for personal injuries was debarred from pursuing all other rights and remedies on account of such injuries." The implication was that he could not sue a third person. The damage involved in that case, however, arose after the passage of an amendment whereby the employer was subrogated to the right of the employee, and might enforce the same in his own name in a suit against the person causing the injury. Section 12 was, of course, construed in the light of the amendment already passed. In other words, the amendment was of a character to modify the effect of this section as it existed before. We cannot, therefore, accept this decision as authority upon the question now before us.

In New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (2), 689, 118 S. E. 786, 789, we said that "the Compensation Acts, though in derogation of the common law, being highly remedial in character, should be liberally and broadly construed to effect their beneficent purposes." But this language had reference to the application of the remedy between the master and the servant, and not to the scope of the act with respect to others. With regard to that, the general rule would be applicable that statutes in derogation of common law and in contravention of the public policy of the state should be strictly construed. Yancey v. Lamar-Rankin Drug Co., 140 Ga. 359 (2), 78 S. E. 1078; Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200 (2), 202, 59 S. E. 725. Repeals by implication are not favored. Franklin County v. Crow, 128 Ga. 458 (1), 57 S. E. 784. To rule that the plaintiff is estopped to bring this action, merely because he as to his employer was subject to its provisions and was compensated thereunder, would be to say that the act of 1920 repealed the existing laws by which the defendant would have been liable for negligence, in so far as they related to persons receiving compensation under the act. In Southern Ry. Co. v. Moore, 133 Ga. 806 (1), 809. 67 S. E. 85, 86 (26 L. R. A. [N. S.] 861), the Supreme Court approved the following principle:

"A statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication; the new remedy is cumulative, and either may be pursued."

In that case the Supreme Court doubts the soundness of the decision of this court in Pennington v. Douglas, etc., Ry. Co., 3 Ga. App. 665 (3), 60 S. E. 485, cited and stressed by the plaintiff in error.

Section 12 does not by express language take away the right of an employee to sue the wrongdoer. Its terms can only mean, that he and his employer are subject to the act and that he shall have no other remedy against his employer. Third persons are not concerned. An outsider does not share the burdens of the act imposed upon theemployer, and he is entitled to none of its benefits. It was never the purpose of this statute to place exclusive liability upon the master for injuries to his employees, arising out of and in the course of the employment, and thus to grant immunity and license to others who were responsible for the injuries.

From what has been said, all of which assumes that compensation paid under the act is in the nature of damages awarded for injury, an assumption under which we will for the present continue, the question resolves itself merely into one of election of remedies. This perhaps is the real question which the plaintiff in error would raise.

"A plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains a satisfaction from some of them."

Civil Code 1910, § 5522. No matter what right the party wronged may have of selecting between remedies, or of pursuing defendants for the same cause of action, when he once obtains full satisfaction from one source, his cause of action ends, and he cannot assert it any further anywhere. McLendon v. Finch, 2 Ga. App. 421 (3), 58 S. E. 690, and citations. In our view, the compensation laws were never intended necessarily to give full compensation for the injury done, as...