Merry Bros. Brick & Tile Co. v. Neely, 38773

• Decision Date: 10 April 1961
• Docket Number: No. 38773,No. 1,38773,1
• Citation: Merry Bros. Brick & Tile Co. v. Neely, 120 S.E.2d 137, 103 Ga.App. 616 (Ga. App. 1961)
• Court: Georgia Court of Appeals
• Parties: MERRY BROS. BRICK & TILE COMPANY v. Candacey B. NEELY

Page 137

120 S.E.2d 137

103 Ga.App. 616

MERRY BROS. BRICK & TILE COMPANY v. Candacey B. NEELY.

No. 38773.

Court of Appeals of Georgia, Division No. 1.

April 10, 1961.

Rehearing Denied May 2, 1961.

Syllabus by the Court.

Under the facts of this case the widow's right to compensation for her husband's death is not barred by the conduct of her husband in continuing to drive a truck upon the advice of his physician that he might drive the truck when he felt like it.

Hull, Willingham, Towill & Norman, Walter A. Reiser, Jr., Augusta, for plaintiff in error.

Eugene M. Kerr, Augusta, for defendant in error.

FELTON, Chief Judge.

Where the claimant's husband died of a heart attack while on the job, having been advised by a physician following an earlier diagnosis of angina pectoris and coronary insufficiency that he could continue to drive a truck in his employment if he felt like it, decedent's failure to notify his employer of his heart condition and his continuing to drive a loaded truck with knowledge of his condition did not amount to such 'wilful misconduct,' under Code § 114-105 as to bar claimant's claim for compensation under the Georgia Workmen's Compensation Act.

'The general rule is that mere violations of instructions, orders, rules, ordinances and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute wilful misconduct. Such violations or failures or refusals generally constitute mere negligence, and such negligence, however great, does not constitute wilful misconduct or wilful failure or refusal to perform a duty, and will not defeat recovery of compensation.' Armour & Co. v. Little, 83 Ga.App. 762, 64 S.E.2d 707, 710.

The cases urged by the plaintiff in error as authority for the proposition that decedent's conduct was 'wilful misconduct,' i. e., Hall v. Kendall, 81 Ga.App. 592, 59 S.E.2d 421 and Tift v. State, 17 Ga.App. 663, 88 S.E. 41 involve criminal acts. While some wilful acts may bar a recovery even if they are not criminal acts, we are not prepared to say that the probability of decedent's having a heart attack was so great, in view of the doctor's advice, that his continuing to drive under these circumstances amounted to 'wilful misconduct' since he had had but one attack and had followed his doctor's advice in not engaging in strenuous exercise, such as loading and unloading bricks.

As to the contention of the plaintiff in error that failure to notify his...