Howard v. Ga. Cas. Co, (No. 19003.)

• Decision Date: 21 February 1929
• Docket Number: (No. 19003.)
• Court: Georgia Court of Appeals
• Parties: BRANCH & HOWARD et al. v. GEORGIA CASUALTY CO. et al.

39 Ga.App. 319

147 S.E. 144

BRANCH & HOWARD et al.

v.GEORGIA CASUALTY CO. et al.

(No. 19003.)

Court of Appeals of Georgia, Division No. 2.

Feb. 21, 1929.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by F. W. Ewing against the Southern Mortgage Company and others, in which Branch & Howard and the Georgia Casualty Company intervened. Judgment for the Georgia Casualty Company, and interveners Branch & Howard bring error. Affirmed.

Branch & Howard, of Atlanta, for plaintiffs in error.

Ralph Williams, Wallace Daley, and Jones, Evins, Moore & Powers, all of Atlanta, for defendants in error.

STEPHENS, J. This case arose upon an intervention filed by Branch & Howard in their own behalf, praying that out of a fund of $609, which had been paid into court by the Southern Mortgage Company, they be awarded a certain amount as attorney's feeswhich they claim by virtue of an alleged lien upon the fund. Upon the hearing it appeared, without dispute, that Branch & Howard, as attorneys for F. W. Ewing, had, in a suit for damages against the Southern Mortgage Company for personal injuries, obtained a judgment for $6,541.66; that afterwards it was agreed that this judgment should be settled for the sum of $5,000; that Branch & Howard had a contract with Ewing by which they were to receive one-third of this amount as attorney's fees for representing Ewing in the suit against the Southern Mortgage Company; that Ewing had, for the same injury, recovered of the Weekley Elevator Company, as compensation payable under the Workmen's Compensation Act, the sum of $609, which the insurance carrier, the Georgia Casualty Company, had paid to Ewing. The Southern Mortgage Company, instead of paying the entire $5,000 to Ewing or his attorneys, paid into court, out of the amount represented by this judgment, the sum of $609, which is equal to the amount which the Georgia Casualty Company had paid to Ewing as compensation for the same injury. The Georgia Casualty Company also intervened and filed a claim to the $609, upon the ground that, as it had paid to Ewing $609 as compensation payable under the Georgia Workmen's Compensation Act (Acts 1020, p. 167) for the same injury, it was, under section 2, subsection (d), of the amendment to that act, approved August 16, 1922 (Acts 1922, p. 189), entitled to the $609 by subrogation to the rights of Ewing against the Southern Mortgage Company. The issue arises between Branch & Howard, who claim one-third of this fund of $609, which amounts to $203, in satisfaction of their lien upon the entire judgment of $5,000 recovered by them in behalf of Ewing in the damage suit, and the Georgia Casualty Company, which claims the entire fund of $609 and which contests Branch & Howard's right to an attorney's lien for fees upon this fund. The court awarded the entire fund of $609 to the Georgia Casualty Company, and Branch & Howard except to this judgment.

Section 2, subsection (d), of the amendment to the Georgia Workmen's Compensation Act, approved August 16, 1922 (Ga. Laws 1922, pp. 185, 187, 189), provides as follows: "When an employee coming under provisions of this act receives an injury for which compensation is payable under this act and which injury was caused under circumstances creating a legal, liability in some person other than the employer to pay damages in respect thereto, the employee, or beneficiary, may take proceedings both against that person to recover damages and against the employer for compensation but the amount of compensation to which he is entitled under this act shall be reduced by the amount of damages recovered. If the employee, or beneficiary of the em ployee, in such case recovers compensation under this act, the employer by whom the compensation was paid, or the party who has been called upon to pay the compensation, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employee to recover therefrom, to the extent of the compensation."

Section 3364, subsection 2, of the Civil Code of 1910, provides that "upon suits, judgments, and decrees for money, they [attorneys at law] shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy said suit, judgment, or decree until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments, and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them."

The attorneys for the Georgia Casualty Company, the defendant in error, contend that the above-quoted provision of the Workmen's Compensation Act gives to a person who has paid compensation under the act a claim, to the extent of the compensation, upon the fund recovered by the beneficiary in an action for tort against a third person responsible for the injury, superior to that of the lien of the attorneys for their fees upon the amount recovered against the third person in the tort action by the beneficiary to whom compensation had been paid. In support of this contention they rely upon certain decisions of the Supreme Court of Alabama and the Appellate Division of the Supreme Court of New York.

The case of Georgia Casualty Co. v. Hay-good, 210 Ala. 56, 97 So. 87, relied upon by counsel for the plaintiffs in error, does not hold that the attorneys who obtained a judgment in a tort action in behalf of the beneficiary under the Compensation Act against a third person causing the injury are not entitled to their lien upon the fund recovered in this action. It merely holds that, where a beneficiary has recovered damages against a third person, the full amount recovered, without any reduction therefrom of an amount representing attorney's fees, will be credited upon the compensation received by the beneficiary. The cases of Solomone v. Dagnon Contracting Co. and Kabel v. Lane Engineering Co., bothdecided by the Appellate Division of...