Mull v. Aetna Cas & Sur Co

• Decision Date: 08 May 1970
• Docket Number: No. 25669,25669
• Citation: 175 S.E.2d 552,226 Ga. 462
• Parties: Virginia B. Pruitt MULL v. AETNA CASUALTY & SURETY COMPANY et al.
• Court: Georgia Supreme Court

Page 552

175 S.E.2d 552

226 Ga. 462

Virginia B. Pruitt MULL v. AETNA CASUALTY & SURETY COMPANY et al.

No. 25669.

Supreme Court of Georgia.

May 8, 1970.

Rehearing Denied June 25, 1970.

Certiorari to the Court of Appeals of Georgia, 120 Ga.App. 791, 172 S.E.2d 147.

Ross & Finch, Ellis Ray Brown, Claude R. Ross, Atlanta, Mundy, Gammage & Cummings, E. Lamar Gammage, Jr., William W. Mundy, Cedartown, for appellant.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, John C. Gray, B.D. Murphy, Atlanta, for appellees.

Syllabus Opinion by the Court

PER CURIAM.

On further consideration of the record in the present case, this court has reached the conclusion that the petition for writ of certiorari was improvidently granted and, accordingly it is dismissed.

All the Justices concur, except NICHOLS and FELTON, JJ., who dissent.

FELTON, Justice (dissenting).

In my opinion, the writ of certiorari was properly granted and the judgment of the Court of Appeals should be reversed.

1. This is a common-law action by an employee's widow against the workmen's compensation insurance carrier of her deceased husband's employer and the carrier's agent for the wrongful death of the employee resulting from the alleged negligence of the defendants in inspecting the machinery of the employer and failing to warn employees of the dangerous condition of a machine. The employee's death is shown by the allegations to be compensable under the workmen's compensation law. The trial court sustained the defendants' motion to dismiss the complaint as failing to state a claim upon which relief can be granted. The Court of Appeals affirmed, holding that, under the circumstances alleged, the insurance carrier and its agent were the alter ego of the employer within the statutory definition equating the carrier to the employer "as far as applicable" and in this respect entitled to the immunity afforded the employer, under the workmen's compensation law excluding, as against the employer, "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" and not to be regarded as "a person or persons other than the employer" who may be "liable to pay damages," citing Code Ann. §§ 114-101, 114-102, 114-103, and 114-403.

2. As the Court of Appeals recognized, the issue to be decided is one of novel impression in this State and there is a split of authority in other jurisdictions. See 93 A.L.R.2d 598 and Later Case Service, A.L.R.2d. In this connection it should be noted that at least two of the cases therein cited as denying recovery have been reversed on appeal, i.e., Mays v. Liberty Mut. Ins. Co. (1962, D.C.Pa.) 211 F.Supp. 541, rev'd by 323 F.2d 174; and Nelson v Union Wire Rope Corp. (1963), 39 Ill.App.2d 73, 187 N.E.2d 425, rev'd by 31 Ill.2d 69, 199 N.E.2d 769. Since a study of these foreign cases reveals that such differing factors as factual situations, statutory provisions and public policies account for the opposite results reached, it is apparent that the issue must be decided on the basis of such factors under applicable Georgia law, our courts not being bound by decisions from other jurisdictions. Martin v. Henson, 95 Ga.App. 715, 733, 99 S.E.2d 251.

3. The Court of Appeals did not consider the issue of the common-law tort liability of the defendants because it adjudged them to be immune from liability under our compensation Act. In my view of the case, however, it is logical to first determine the common-law liability under the complaint, and then determine if the Act has granted immunity. In making the first determination above, it must be remembered that, under our system of notice pleading, " * * * a motion to dismiss should not be granted unless the allegations in the complaint disclose with certainty that the plaintiff would not be entitled to any relief under any state of facts which could be proved in support of the claim." Residential Developments, Inc. v. Mann, 225 Ga. 393, 397, 169 S.E.2d 305, 308. Hence, even if the particulars of negligence alleged in the complaint be considered doubtful as to stating a claim, the plaintiff would still have an opportunity under Code Ann. § 81A-115 (Ga.L.1966, pp. 609, 627, as amended, Ga.L.1968, pp. 1104, 1106) to amend her pleadings and introduce whatever evidence might prove her claim. If the statement of the Court of Appeals that "[u]nder the circumstances alleged * * * " the defendants were the alter ego of the employer, means that the complaint was dismissed on the basis of the particular acts of negligence alleged, then it amounts to the former practice, no longer in effect, of sustaining a general demurrer to a petition on the sole basis of its literal allegations.

4. There is respectable authority supporting the common-law action as alleged in this complaint. "Originating with the decision of Coggs v. Bernard, 2 Lord Raymond 909, it has come to be a recognized principle that liability can arise from the negligent performance of a voluntary unguage of Justice Cardozo in Glanzer v. dertaking. In our times a clear and oft-cited statement of the principle is the lan-Shepard, 233 N.Y. 236, 135 N.E. 275, 276, 23 A.L.R. 1425, when he said: 'It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.' (See also: 38 Am.Jur., Neg. sec. 17; 5 Harvard Law Review 222)." Nelson v. Union Wire Rope Corp., supra, 199 N.E.2d 769, 773(2). "One who gratuitously renders services to another * * * is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise with reasonable care such competence and skill as he possesses." Restatement, Torts, § 323(1). "The language that a volunteer is liable for failure to use such competence and skill as he possesses does not admit to a conclusion that the only duty of the volunteer is to refrain from positive acts of negligence. Moreover, in those cases, subsequently discussed, where insurers have incurred liability as the result of gratuitous inspections of machines and equipment, liability rested upon a breach of the duty to make the inspections with due care, not upon acts which 'created' dangers or defects, or which caused the occurrence by which injury was received. * * * There is respectable authority, old and new, that gratuitous inspections by insurers may be made under such circumstances as to create an enforceable duty to persons known and unknown." Nelson, supra, 199 N.E.2d 769, 774 and cit. The Nelson case relied upon evidence showing that the carrier had conducted safety inspections which were "planned, periodic and directed to the safety of the employees." P. 778. In this State it has been recognized that "negligence is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do," and hence, that "negligence consists either of the omission to do an act which ought to be done, or the omission to perform properly what one undertakes to do." Womack v. Central Ga. Gas Co., 85 Ga.App. 799, 803, 70 S.E.2d 398, 403, citing Southern Ry. Co. v. Chatman, 124 Ga. 1026, 53 S.E. 692, 6 L.R.A.,N.S. 283; New ill v. Atlanta Gas-Light Co., 48 Ga.App. 226, 172 S.E. 232; and Code § 105-201. See also Emory University v. Lee, 97 Ga.App. 680, 691, 104 S.E.2d 234, citing Wright v. Southern Ry. Co., 62 Ga.App. 316(3), 7 S.E.2d 793; Thomas v. Williams. 105 Ga.App. 321, 326, 124 S.E.2d 409.

With regard to the fact that there is no privity of contract between the carrier and the employee, the Nelson case pointed out that "the vast majority of jurisdictions * * * [have] long since refused to permit the ancient shield of privity to insulate a tortfeasor from the consequences of his negligent conduct."

As to the foreseeability of injuries to the employees as a result of the defendants' negligence, the employees were the chief beneficiaries of the safety inspection services rendered by the defendants, since the inspections were for the purpose of preventing injuries to them, and defendants could reasonably have expected and foreseen that such employees would be endangered by defendants' failure to use due care.

Nor would the fact that the injury might have been caused in part by the employer's negligence in maintaining a safe place to work bar a recovery. "[I]t is fundamental in the law of negligence that there may be more than one proximate cause of injury, * * * and that one is liable for its negligent conduct whether it contributed in whole or in part to the plaintiff's injury, so long as it was one of the proximate causes of injury." Nelson, supra, 199 N.E.2d p. 780. Regardless of whether or not the evidence might show negligence on the part of the employer which may have contributed to the injury, moreover, "there is no basis upon which the employer can be a joint tort-feasor with a third person as to an employee where both employer and employee are under the Act." Williams Bros. Lumber Co. v. Meisel, 85 Ga.App. 72, 75, 68 S.E.2d 384, 388; Echols v. Chattooga Mercantile Co., 74 Ga.App. 18, 24, 38 S.E.2d 675.

The above authorities should suffice to show that the plaintiff might prove a claim against the defendants on the merits within the framework of the complaint.

5. The principal divergence of the cases of this type arises over the issue of whether the compensation Act operates to destroy the injured employee's common-law right to sue the party responsible for the injury. The common law is of force in this State except where modified by statute or not adjusted to our situation. Brooks v. Ready Mix Concrete Co., 94 Ga.App. 791, 793, 96 S.E.2d 213 and cit.

I have concluded that a compensation carrier is not immune from common-law tort liability for its own acts of negligence causing injury to an employee and...