New Amsterdam Cas. Co. v. Thompson
| Decision Date | 13 November 1959 |
| Docket Number | No. 2,37897,Nos. 37896,s. 37896,2 |
| Citation | 112 S.E.2d 273,100 Ga.App. 677 |
| Parties | NEW AMSTERDAM CASUALTY COMPANY et al. v. Katherine M. THOMPSON. Katherine M. THOMPSON. v. NEW AMSTERDAM CASUALTY COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where the evidence adduced before the Deputy Director of the State Board of Workmen's Compensation showed that the employee, at the time of his death was working for an employer whose only place of business was in Georgia, under a contract executed and entered into in Georgia, which as subsequently modified by verbal agreement between the parties in accordance with its terms did not provide for work exclusively outside of Georgia, the Georgia Board of Workmen's Compensation had jurisdiction of the case.
(a) Under the particular facts of this case the board did not err in permitting the claimant to withdraw one of her stipulations and in thereafter admitting evidence in conflict therewith.
2. The evidence was sufficient to authorize the finding of the board that the employee met his death on account of an accident which arose out of and in the course of his employment.
(a) Evidence of statements made by the employee prior to his death introduced to prove that he was acting in the scope of his employment at the time he was killed, were admissible under a recognized exception to the hearsay rule.
3. The claimant failed to prove that she was the lawful wife of the deceased employee and the award of compensation to her individually was accordingly not authorized.
(a) However direction is given that an award be entered for her as guardian of the deceased employee's minor daughter.
4. The State Board of Workmen's Compensation did not abuse its discretion in remanding the case to the deputy director for the taking of additional evidence.
5. The award of statutory penalties and attorney's fees against the insurance company on account of frivolous appeals was not demanded under the facts of this case.
Mrs. Katherine M. Thompson filed a claim with the State Board of Workmen's Compensation for compensation on account of the death of her husband, John Russell Thompson, who was drowned when his automobile ran off the public highway into a lake or pond by its side. The employer was Hill Manufacturing Company, of Atlanta, and the employee, under the evidence had entered into a contract of employment to act as a salesman in certain designated counties of South Carolina for the company, one of those counties being Horry County, South Carolina, in which are located the towns of Conway and Myrtle Beach. The deceased and the claimant resided in Conway, South Carolina. The Deputy Director of the State Board of Workmen's Compensation awarded compensation to the claimant individually and to her as guardian of her minor daughter, who under the evidence was dependent on the deceased. On appeal to the full board by the employer and insurance carrier the claimant made a motion to remand the case to the deputy director for the purpose of taking additional evidence. This motion was granted, and the case was so remanded, and additional evidence heard. After hearing additional evidence, the deputy director again entered an award in accordance with his original award. This award was appealed to the full board which by a vote of two to one entered an award in accordance with the award of the deputy director. The superior court on appeal affirmed this award and the exception here is to that judgment.
Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Atlanta, for plaintiff in error.
Hamilton Lokey, Atlanta, H. T. Abbott, Conway, S. C., for defendant in error.
1. The plaintiff in error makes eight assignments of error in this court, the first of which is that the State Board of Workmen's Compensation is without jurisdiction of the claim. The seventh and eighth assignments of error, which are closely related to the first, raised the issue that the board erred in allowing the claimant to withdraw a portion of her stipulation of fact to the effect that the contract of employment between the employer and her husband was exclusively for services within certain designated counties of South Carolina, and in allowing testimony and documentary evidence to be introduced for the purpose of disproving that stipulation of fact. In the view which we take of the matter, it is immaterial that this stipulation of fact was withdrawn and that evidence was introduced 'disproving' the stipulation. While it is true that the written contract between the employer and employee as originally drawn specified that he was to act as a salesman for the company in 14 counties of South Carolina, this contract also contained a provision against any waiver or alteration in the agreement except in writing but this provision expressly excluded from its force and effect any alteration by way of expansion or reduction of the territorial area to be traveled by the employee, and provided that this change might be made mutually by the company and the salesman verbally without otherwise voiding the agreement. It is axiomatic that, where a subsequent ageement is founded on consideration, a prior written contract may be modified or changed by such subsequent parol agreement between the parties. Evans v. Henson, 73 Ga.App. 494(3), 37 S.E.2d 164; Verner v. McLarty, 213 Ga. 472, 475, 99 S.E.2d 890. The subsequent performance by the employee in entering the additional territory verbally agreed on and making sales therein and the payment by the company of commissions therefor was sufficient consideration to support the new or amended agreement.
The stipulation in this case is that the contract under which John Russell Thompson was employed by Hill Manufacturing Company was exclusively for services within certain designated counties in the State of South Carolina. Even if this stipulation had not been withdrawn, it was competent for the claimant to prove that this contract had been modified by a subsequent parol agreement that he would work also in some other place. Such proof was not necessarily in conflict with the stipulation, which on its face relates merely to the original contract under which Mr. Thompson went to work.
If follows that the board did not abuse its discretion under the circumstances in this case in allowing the claimant to withdraw the stipulation referred to and in thereafter allowing the claimant to introduce evidence of a subsequent parol modification of the contract under which the deceased was to perform services in selling the company's products to certain designated accounts in and around Summerville, Georgia. This evidence having been properly introduced, it authorized a finding that, at the time Mr. Thompson met his death he was working under a contract entered into in Georgia for an employer whose principal place of business was in Georgia, and that his contract of employment was not exclusively for services outside the State of Georgia. Accordingly, under this evidence the State Board of Workmen's Compensation of Georgia had jurisdiction of the case. Code § 114-411. Metropolitan Casualty Insurance Co. of New York v. Huhn, 165 Ga. 667, 670(1), 142 S.E. 121, 59 A.L.R. 719; Slaten v. Travelers Ins. Co., 197 Ga. 1, 28 S.E.2d 280; McDonald-Haynes v. Minyard, 69 Ga.App. 479, 26 S.E.2d 138; Murphey v. American Mutual Liability Ins. Co., 70 Ga.App. 598, 28 S.E.2d 876; Cramer v. American Mutual Liability Ins. Co., 77 Ga.App. 236, 47 S.E.2d 925.
Under the evidence adduced on the hearing, there is a further and equally strong reason why the board properly took jurisdiction of this case. The evidence shows that the defendant insurance carrier had written workmen's compensation insurance for the Hill Manufacturing Company, the employer for nine or ten years, and all during the time in which Mr. Thompson was employed by that company as a salesman. The premiums charged and the rates thereof were fixed in accordance with annual audits had of the employer's books by auditors on behalf of the insurance company, and the evidence showed that at all times during Mr. Thompson's employment the compensation paid to him by the company was taken into consideration in the fixing of these rates. No contention was made by the insurance company that there had been any adjustment in the rates on account of variances in the benefits provided under Georgia and South Carolina law. Under these circumstances, the provisions of the second paragraph of Code, § 114-607 are applicable. This Code section provides in part that: Under this Code section and under the facts of this case the insurance carrier was estopped to contend that Mr. Thompson was not an employee within the meaning of the Georgia Workmen's Compensation Act, and that the Georgia State Board of Workmen's Compensation did not have jurisdiction to award compensation to his dependents. Maryland Casualty Co. v. Wells, 35 Ga.App. 759(1), 134 S.E. 788; Employers' Liability Assurance Corp. v. Henderson, 37 Ga.App. 238(1), 139 S.E. 688; Liberty Mutual Ins. Co. v. Henry, 56 Ga.App. 868, 194 S.E. 430. It follows that the judge of the superior court did not err in overruling the first, seventh and eighth contentions or assignments of error of the defendant employer and insurance carrier.
2. It is contended that the claimant failed to carry the burden of proving that John R. Thompson died as the result of an accident arising out...
To continue reading
Request your trial
-
Pacific Emp. Ins. Co. v. Peck, 48128
...fees, which was affirmed by the Superior Court of Hall County, should not be disturbed by this court. New Amsterdam Cas. Co. v. Thompson, 100 Ga.App. 677, 686, 112 S.E.2d 273; Federated Ins. Group v. Pitts, 118 Ga.App. 356, 358, 163 S.E.2d 841 I respectfully dissent. I am authorized to stat......
-
National Union Fire Ins. Co. v. Johnston
...reviewed the discretion, and found no abuse, either in allowing or refusing additional evidence, see New Amsterdam Casualty Company v. Thompson, 100 Ga.App. 677(4), 112 S.E.2d 273; Adams v. Utica Mutual Insurance Company, 88 Ga.App. 386, 390, 76 S.E.2d 709; Peters v. Liberty Mutual Insuranc......
-
Phoenix Ins. of Hartford v. Weaver
...refusal to grant attorney's fees. LaFavor v. Aetna Casualty &c. Co., 117 Ga.App. 873(1), 162 S.E.2d 311; New Amsterdam Cas. Co. v. Thompson, 100 Ga.App. 677(5), 112 S.E.2d 273. 3. The facts here show clearly that the main appeal was not taken for delay only, hence this court refuses to gran......
-
Georgia Cas. & Sur. Co. v. Rainwater
...compensation insurance constituting a definite contract between all parties concerned.' (Emphasis supplied). New Amsterdam etc. Co. v. Thompson, 100 Ga.App. 677, 680, 112 S.E.2d 273. But even if the claimant was an independent contractor, since the insurance carrier issued a policy to cover......