Parker v. Travelers' Ins. Co.

• Decision Date: 27 February 1932
• Docket Number: 8296.
• Citation: 163 S.E. 159,174 Ga. 525
• Parties: PARKER v. TRAVELERS' INS. CO. et al.
• Court: Georgia Supreme Court

163 S.E. 159

174 Ga. 525

PARKER v. TRAVELERS' INS. CO. et al.

No. 8296.

Supreme Court of Georgia

February 27, 1932

Rehearing Denied March 5, 1932.

Syllabus by the Court.

"Policeman" is not "employee" of municipal corporation within meaning of Workmen's Compensation Act (Laws 1920, p. 168 § 2 (b).

"Policeman" is public officer whose duties relate to governmental function of municipality.

Existence of relation of employer and employee is essential to confer jurisdiction upon Industrial Commission to entertain claim for compensation (Laws 1920, p. 168, § 2 (b).

Municipal corporation held not estopped, by reason of insuring payment of compensation to officers not occupying status of employees, from denying, in compensation proceeding, that relationship was that of employee (Laws 1920, p. 168, § 2 (b).

Insurance carrier issuing compensation policy covering municipal officers not occupying status of employees, and accepting premiums thereunder, held not estopped from denying existence of relation of employer and employee in compensation proceeding (Laws 1920, p. 168, § 2 (b).

1. A policeman of a municipality is not an employee of the municipal corporation, within the meaning of section 2 (b) of the Workmen's Compensation Act. Ga. L. 1920, p. 167.

2. The existence of the relation of employer and employee, within the meaning of section 2 (b) of the Workmen's Compensation Act, is necessary in order to confer upon the Industrial Commission jurisdiction to entertain a claim for compensation in any and all cases.

3. A municipal corporation coming under the provisions of the Workmen's Compensation Act will not be estopped, by reason of insuring the payment of compensation as provided by the act to any officer or official not occupying the legal status of an employee, from denying that the relation of employer and employee existed between it and such officer or official.

4. The insurance carrier, insuring the payment of compensation as provided by the act to any officer or official not occupying the legal status of an employee, will not be estopped, by reason of the issuance of such policy of insurance and the acceptance of premiums thereon, including premiums based upon the salary or wages paid to such officer or official, from denying that the relation of employer and employee existed between such municipal corporation and any such officer or official.

Questions certified by Court of Appeals.

Proceeding under the Workmen's Compensation Act by Mrs. J. P Parker, opposed by the Travelers' Insurance Company and another, in which claimant sought review by writ of error to the Court of Appeals, and the Court of Appeals certified questions.

Questions answered.

RUSSELL C.J., and HINES, J., dissenting.

J. M De Foor, of Townsend, and W. E. Harclerode, of East Point, for plaintiff in error.

McDaniel, Neely & Marshall and Harry L. Greene, all of Atlanta, for defendants in error.

ATKINSON J.

The Court of Appeals certified certain questions for decision by the Supreme Court.

1. Question 1: "Is a policeman of a municipality an employee of the municipal corporation within the meaning of section 2 (b) of the Workmen's Compensation Act (Acts 1920, p. 167)? See, in this connection, City of Macon v. Whittington, 171 Ga. 643, 156 S.E. 674; Marlow v. Mayor, etc., of Savannah, 28 Ga.App. 368, 110 S.E. 923." By the language of the statute, employees as therein defined must be such under "contract of hire or apprenticeship." Ga. Laws 1920, p. 167, § 2 (b).

A policeman is not such an employee, but is a public officer whose duties relate to the governmental functions of a municipality, and for whose torts while exercising such functions the municipality is not liable. In Cornelisen v. Atlanta, 146 Ga. 416, 418, 91 S.E. 415, 416, it was said: "This construction would leave intact the common-law doctrine, frequently applied in this state before and since adoption of the Code, of nonliability for conduct of officers, agents, and servants of municipal corporations in respect to duties devolving upon them in virtue of the sovereign or governmental functions of the municipality. This doctrine has been applied in Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am.St.Rep. 64, a case based on negligence of the driver of a garbage cart in the employment of the board of health; Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664, a case based on negligence of the driver of an ambulance for a city hospital; Rogers v. City of Atlanta, 143 Ga. 153, 84 S.E. 555, a case based on negligence of a fireman in cutting a hole in a floor while engaged in extinguishing a fire, and into which the plaintiff stepped; Mayor, etc., of Savannah v. Jordan, 142 Ga. 409, 83 S.E. 109, L.R.A. 1915C, 741, Ann.Cas. 1916C, 240, a case based on negligence of an inspector of the sanitary department in furnishing the driver of a garbage cart of the city with a defective vehicle, the axle of which broke and injured the driver. In those instances the duty was purely of a public nature, intended for the benefit of the public at large, without any pretense of private gain to the municipality; and, because it was such, no liability would attach, as a general rule." In City of Macon v. Whittington, 171 Ga. 643, 156 S.E. 674, it was held: "Where a person, at the time of his death on December 23, 1927, was a member of the fire department of the city of Macon, Ga., and was killed in the discharge of his duties as such, and where his service or employment was subject to the civil service rules and regulations, as provided for and contained in sections 57 and 58 of the Act of August 3, 1927, amending the charter of the city of Macon and consolidating previous acts creating and amending the charter (Ga. Laws 1927, pp. 1283-1357), and subject also to other provisions of that act, especially those contained in sections 59 to 70, inclusive, and where it does not appear that by any additional civil service rules or regulations adopted by the mayor and council, or by any other rule or ordinance, his status was defined as being that either of an officer or of an employee, or that any power or duties had been in any way conferred by the municipal authorities upon firemen beyond those ordinarily incident to members of a municipal fire department, and where there were no other facts to indicate whether the fireman was an officer or was an employee, the Industrial Commission of this state, in passing upon a claim for compensation for his death, was not authorized to find that the fireman so killed was an employee within the meaning of section 2 (b) of the Act of August 17, 1920, known as the Workmen's Compensation Act (Laws 1920, p. 168)."

In Marlow v. Savannah, 28 Ga.App. 368, 371, 110 S.E. 923, 924, it was said: "The sole question presented here for determination is whether this policeman was an employee or a public officer. The Supreme Court of Appeals of Virginia, upon a statute almost identical with the Georgia act, has held that a policeman is a public officer, and not such an employee as is contemplated by the act. Mann v. City of Lynchburg, 129 Va. 453, 106 S.E. 371. Indeed, the Georgia precedents, where the question whether a policeman was an employee or an officer has been considered in actions of tort against municipalities, are uniform that a policeman is a peace officer, whose duties are connected with the public peace, and is a public officer. The deceased policeman in this case was not an employee under contract, express or implied. Under the provision of the act here, the relation of employer and employee must exist in order to sustain the award." The first question propounded by the Court of Appeals is answered in the negative.

2. Question 2: "Is the existence of the relation of employer and employee, within the meaning of section 2 (b) of the workmen's compensation act, necessary in order to confer upon the industrial commission jurisdiction to entertain a claim for compensation in any and all cases?" The question is answered in the affirmative. The Industrial Commission is a statutory body whose jurisdiction is limited to the matters expressed in the act. The jurisdiction is not extended to any claim for compensation that is not founded on the relation of employer and employee. In Gravitt v. Georgia Casualty Co., 158 Ga. 613, 618, 123 S.E. 897, 899, it was said: "The Georgia Industrial Commission is not a court of general jurisdiction, nor even of limited common-law jurisdiction, but it is an industrial commission made so by express terms of the act of the Legislature to administer its provisions as provided therein. As such administrative commission it possesses only such jurisdiction, powers, and authority as are conferred upon it by the Legislature, or such as arise therefrom by necessary implication to carry out the full and complete exercise of the powers granted." In Hartford Accident, etc., Co. v. Thompson, 167 Ga. 897, 899, 147 S.E. 50, 51, it was said: "The claims for compensation over which that body may exercise jurisdiction must be founded on the relation of employer and employee as defined by the statute." In Marlow v. Savannah, 28 Ga.App. 368, 371, 110 S.E. 923, 924, it was said: "Under the provision of the act here, the relation of employer and employee must exist in order to sustain the award." In United States Fidelity, etc., Co. v. Watts, 35 Ga.App. 447, 452, 133 S.E. 476, 479, it was said: "The claimant was not entitled to compensation unless he was an employee."

3. The next two questions will be considered together. Question 3 is: "If question 2 be answered in the affirmative, would a municipal corporation coming under the provisions of the workmen's compensation act (in this respect differing from the status of the parties set forth in ...