Hotel Equipment Co. v. Liddell

• Decision Date: 13 August 1924
• Docket Number: 15240.
• Citation: 124 S.E. 92,32 Ga.App. 590
• Parties: HOTEL EQUIPMENT CO. v. LIDDELL.
• Court: Georgia Court of Appeals

124 S.E. 92

32 Ga.App. 590

HOTEL EQUIPMENT CO. v. LIDDELL.

No. 15240.

Court of Appeals of Georgia, Second Division

August 13, 1924

Syllabus by the Court.

Where an employee and an employer had both accepted the provisions of the Workmen's Compensation Act (Ga. L. 1920, p. 167) the employee did not thereby lose his right of action against a third person as a wrongdoer causing his injury.

(a) Even assuming that the compensation paid under the act is in the nature of damages awarded for injury, an employee's acceptance of a certain sum thereunder for an injury would not altogether prevent his proceeding against such wrongdoer unless the same was a full satisfaction for the injury under the general law as it existed prior to the act. The Compensation Act was not intended to give that measure of recompense.

(b) But the compensation provided thereunder is in truth in the nature of benefits under an insurance policy, and its receipt by an injured employee can afford no ground upon which a third person, who wrongfully inflicted the injury, should escape liability, either wholly or in part.

(c) In such an action a plea in bar upon the ground that the employee had received compensation from his employer under the Compensation Act, even if, in any view, otherwise sufficient, would be bad, in the absence of an averment that the injury arose out of and in the course of the employment.

(d) The above rulings are under the act as it existed prior to the amendment of 1922 (Ga. L. 1922, p. 185).

Where the owner of a truck and another jointly employ a chauffeur to operate the truck in the business of either, each contributing equally to the maintenance of the truck and the wages of the chauffeur, and where they both have equal rights to the use of the truck and the chauffeur is subject equally to the control of each, both or either may be held liable for an injury negligently inflicted by him upon another in the operation of the truck in the prosecution and within the business of either, which was in contemplation of the three parties at the time of his employment.

The extract from the charge set forth in the third division of the opinion was not error as an unfair statement of the contentions of the parties.

(a) Other charges examined and held not prejudicial though inapplicable. An irrelevant charge is not cause for a new trial, unless it appears that the losing party was prejudiced thereby.

(b) It is not reversible error that the court directed the jury to consider the relationship of witnesses to the parties instead of instructing them that they might do so.

(c) The jury were sufficiently instructed upon the law of negligence. It was not error to omit a definition of that term, in the absence of a proper request.

The evidence authorized a finding in favor of the plaintiff for some amount, and, considering the verdict as one only for the injury and the incident pain and suffering, both past and future, and for expense incurred, it cannot be held as a matter of law that the amount awarded was so great as to show bias, prejudice, or mistake on the part of the jury.

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 person 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 personal 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 his 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...