Metro. Cas. Ins. Co. Of N.Y. v. Huhn, (Nos. 5979, 5980.)

• Decision Date: 16 February 1928
• Docket Number: (Nos. 5979, 5980.)
• Citation: 165 Ga. 667,142 S.E. 121
• Parties: METROPOLITAN CASUALTY INS. CO. OF NEW YORK et al. v. HUHN. SAME. v. REIGER.
• Court: Georgia Supreme Court

165 Ga. 667

142 S.E. 121

METROPOLITAN CASUALTY INS. CO. OF NEW YORK et al.

v.HUHN.

SAME.

v.REIGER.

(Nos. 5979, 5980.)

Supreme Court of Georgia.

Feb. 16, 1928.

(Syllabus by the Court.)

Atkinson, J., dissenting in part.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Separate proceedings under the Workmen's Compensation Act by Mrs. B. W. Huhn and Mrs. Frank Reiger for the death of Emil Huhn and Frank Reiger, respectively, their husbands, opposed by the Metropolitan Casualty Insurance Company of New York, insurance carrier, and the Augusta Baseball Company, employer. Awards of the Industrial Commission for claimants was affirmed in the circuit court, and the employer and insurance carrier being error. Affirmed.

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

Jas. S. Bussey, Jr., of Augusta, for defendants in error.

BECK, P. J. These two cases arose under the Georgia Workmen's Compensation Act (Laws 1920, p. 167, as amended). Both are death cases. Emil Huhn and Frank Reiger were killed in the same accident, and their cases are alike, with the exception that Huhn was driving the automobile which turned over, while Reiger was sitting on the front seat with him; so that the record in one case, with the exception stated, is like the record in the other case.

The points of law involved in the two cases are substantially the same, except with reference to the willful misconduct of Huhn as driver of the ill-fated car, which differs from the willful misconduct of Reiger, who was sitting alongside of Huhn when the car turned over. The alleged employer is Augusta Baseball Company, Incorporated, a Georgia corporation engaged in the business of operating the Augusta Baseball Club as a member of the South Atlantic League of Baseball clubs, composed of teams represented by the cities of Augusta and Macon in Georgia, cities in South Carolina, Charlotte in North Carolina, and Nashville, Tenn. Huhn was manager of the Augusta Baseball Club, while Reiger was a pitcher on the Augusta team. Tobe Livingston, Chris Haury, Harry Smythe, Joseph H. Ruskey, and Kenneth Sedgwick were other players of the Augusta Baseball Club. All of these players were riding in the automobile at the time it turned over. Huhn was driving the car that night, while Reiger was sitting on the front seat with him. and other ball players were sitting on the rear seat of the seven-passenger touring car owned and operated by the Augusta Baseball Club for the purpose of transporting these players and others from city to city and state to state in the South Atlantic League. As a result of this automobile turning over on a public highway in South Carolina, at a point about 65 miles south of Charlotte, N. C, and about 15 miles south of Camden, S. C., on its way from Charlotte, through South Carolina, to Augusta, Ga., on September 5, 1925, Huhn and Reiger on the front seat were killed, and the other named players were injured.

The widows of the deceased players brought their claims against the Augusta Baseball Club and the Metropolitan Casualty Insurance Company of New York, for compensation under the Georgia Workmen's Compensation Act. These claims came on for hearing before Commissioner Norman, of the Industrial Commission of Georgia, in Augusta, Ga., on December 8, 1925, at which time it was agreed by all the parties that one hearing would be held for these and other claims, so that the evidence common to all claims would be taken only one time and considered as a part of the record in each case. The commissioner rendered an award favorable to the claimants. Subsequently, upon application for review by a full com mission, the Industrial Commission rendered an award sustaining that made by Commissioner Norman. An appeal from the award of the full commission was taken by the baseball company and the insurance company; and, after a hearing in accordance with the statute, the judge of the superior court took the case under advisement and consideration, and on August 12, 1926, passed an order denying and dismissing the appeal and affirming the award. To this judgment the employer and the insurance carrier excepted upon several grounds.

1. One of the grounds of exception insisted upon is that the Industrial Commission of Georgia had no jurisdiction to try the case and render the award complained of, "as the accident which caused the death of claimant's husband happened in the state of South Carolina." In section 37 of the Georgia Workmen's Compensation Act (Ga. L. 1920, p. 187) it is provided:

"That (a) where an accident happens while the employee is employed elsewhere than in this state, which would entitle him or his dependents to compensation if it had happened in this state, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this state, and if the employer's place of business is in this state, or if the residence of the employee is in this state; provided his contract for employment was not expressly for service exclusively outside of the state. (b) Provided, however, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this act."

This section, given a reasonable construction, confers upon the Industrial Commission, in the exercise of the powers given to it by the act referred to, the authority to entertain jurisdiction of a case like the present, where the claim is made by the proper parties for compensation for injuries which occurred in another state. The contract between the baseball company and Huhn and Reiger, its employees, was not expressly for services "exclusively outside of the state" of Georgia. It would seem to be the necessary inference that, inasmuch as the Industrial Commission has jurisdiction of all cases involving claims for compensation under the provisions of this act, it would have jurisdiction of cases growing out of claims for compensation for injuries occurring out of the state, as express provision for such claim is made in the section just quoted. And no doubt is left as to the commission's jurisdiction of such cases when we read, in connection with section 37, the following portion of section 56:

"If the injury occurred without the state of Georgia, and is one for which compensation is payable under this act, then the hearing above referred to may be held in the county of the employer's residence or place of business, or inany other county of the state which will, in the discretion of the commission, be the most convenient."

2. Plaintiffs in error also insist that the judgment excepted to is contrary to law, on the ground that the original motion filed by them at the hearing before Commissioner Norman, which is a part of the record in the case, should have been sustained. In the motion just referred to, the act of the Legislature referred to as the Georgia Workmen's Compensation Act is attacked upon several constitutional grounds; one of these grounds being that the act is in violation of article 6, § 18, par. 1, of the Constitution of the state of Georgia (Civil Code, § 6545), which guarantees the right of trial by jury, and provides that trial by jury shall remain inviolate. And it is urged that in the Georgia Workmen's Compensation Act and the amendments thereto no provision is made for trial by a jury of any of the issues of fact that might be raised in a case involving a claim like that now under consideration. There is no merit in this ground. Under the decisions of many courts, the plaintiffs in error have waived this constitutional objection by voluntarily bringing themselves within the operation of the act. In the case of Booth Fisheries Co. v. Industrial Commission of Wisconsin. 271 U. S. 208, 46 S. Ct. 491, 70 L. Ed. 908, it was said by the Supreme Court of the United States, affirming the judgment of the Supreme Court of Wisconsin:

"More than this, the employer in this case, having elected to accept the provisions of the law, and such benefits and immunities as it gives, may not escape its burdens by asserting that it is unconstitutional. The election is a waiver and estops such complaint. Daniels v. Tearney, 102 U. S. 415, 26 L. Ed. 187; Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17, 24 S. Ct 310, 48 L. Ed. 598."

Numerous text-writers laying down the same doctrine might be quoted, where the text is supported by the citation of authorities. But we will not decide finally here the question as to whether there was such a waiver as precluded the plaintiffs in error from raising this point. We base our decision that this is not a valid objection to the act upon the ruling that there is no constitutional guaranty of trial by jury of the issues arising under this act. The entire procedure involved in the act has been brought into existence or created by the Legislature since the adoption of our Constitution containing the provisions that the right of trial by a jury shall remain inviolate. In the case of Crowell v. Akin, 152 Ga. 126, 108 S. E. 791, 19 A. L. R. 51, it was said:

"This brings us to a consideration of the second ground of attack on the act Article 6, § 18, par. 1, of the Constitution of this state (Civil Code 1910, § 6545) declares that 'the right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate.' This provision is uniformly construed as not conferring a right to trial by jury in all classes of cases, but merely as guaranteeing the continuance of the right unchanged as it existed either at common law or by statute in the particular state at the time of the adoption of the Constitution. 24 Cyc. 101. Prior to the Constitution certain classes of cases were triable without a jury. All cases triable without a jury prior to the adoption of the Constitution may still be so tried. It will be conceded that it is competent for ...