Sands v. Union Camp Corp.

• Decision Date: 30 September 1977
• Docket Number: No. 77-1202,77-1202
• Citation: 559 F.2d 1345
• Parties: Marcus M. SANDS, Plaintiff-Appellant, v. UNION CAMP CORPORATION, Defendant-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1345

559 F.2d 1345

Marcus M. SANDS, Plaintiff-Appellant, v. UNION CAMP CORPORATION, Defendant-Appellee.

No. 77-1202

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Sept. 30, 1977.

Joseph B. Bergen, Cletus W. Bergen, II, Savannah, Ga., for plaintiff-appellant.

James M. Thomas, Savannah, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before GOLDBERG, CLARK and FAY, Circuit Judges.

PER CURIAM:

This is a removal proceeding, brought under the provisions of 28 U.S.C.A. § 1441 et seq. The complaint seeks recovery of $250,000 damages and $150,000 punitive damages arising out of an incident when plaintiff was struck a blow by a fellow servant. Plaintiff alleges that he was totally disabled as a result of injuries received from an assault and battery perpetrated against him by his supervisor at the Union Camp Company. The reason for the dispute related to the manner of performance of a particular task which was part of plaintiff's duties. Plaintiff had notified the company on two prior occasions of assaults on the part of the supervisor. The district court decided as a matter of law that the distinction between a mere fellow employee and a fellow supervisory employee is immaterial to the right to maintain a common law action. The court granted summary judgment for defendant, holding that the injuries sued for arose in the course of and out of plaintiff's employment within the meaning of Ga.Code Ann. § 114-102, and that the exclusivity provision, § 114-103, barred the common law action. A motion for reconsideration and to set aside judgment and to allow supplemental affidavit was denied, January 17, 1977. This appeal followed. We affirm.

Plaintiff Sands contends that his injuries are the result of an intentional tort by a supervisor and vicarious liability can be imputed to the employer because the injuries are not accidental injuries as contemplated by the Georgia Workmen's Compensation Act. Plaintiff alleges that where defendant had knowledge of prior altercations and plaintiff's assailant acted in supervisory capacity as agent of defendant, that there is a question of fact as to whether defendant breached a common law duty to plaintiff. Plaintiff's theory is that assailant, as a supervisor, was essentially the alter ego of defendant, acting in furtherance of defendant's business, and defendant was therefore party to the intentional tort and liable under respondeat superior.

Defendant Union Camp contends that where a servant is injured by a fellow servant or superior employee in a dispute not provoked by the injured servant, arising over the conduct of the master's business, the injury may be the result of an accident in so far as the injured employee is concerned. Defendant contends that since the injury is the result of an "accident", plaintiff's exclusive remedy is under the Workmen's Compensation Act.

Recent decisions applying Georgia law afford guidance both as to the general purpose of the Workmen's Compensation Act and with regard to the specific sections at issue here. Massey v. Thiokol Chemical Corporation,368 F.Supp. 668, 672 (S.D.Ga.1973):

"The purpose of the workmen's compensation legislation was to do away with common law rules governing actions by employees under the law of master and servant and to replace such antique system with one that provided absolute liability of the employer and fixed compensation for accidental injury or death."

Ga.Code Ann. § 114-102 defines compensable injury to be "injury by accident arising out of and in the course of the employment". "Accident" includes every injury except diseases not naturally growing out of injuries arising out of and in the course of employment, injuries caused by wilful act of third person directed against employee for reasons personal to such employee, and wilful misconduct on part of employee. See Reid v. Lummus Cotton-Gin Co., 58 Ga.App. 184, 185, 197 S.E. 904, 905 (1938); Southern Wire and Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962). ¹ The fact that the injury is the result of wilful or criminal assault of third person upon employee while employee is engaged in work of his employment does not necessarily prevent injury from being accidental within the meaning of the compensation act. Pinkerton National Detective Agency v. Walker, 157 Ga. 548, 122 S.E. 202 (1924); Keen v. New Amsterdam Casualty Co., 34 Ga.App. 257, 129 S.E. 174 (1925). ² An accident "arises out of employment" when there is a causal connection between conditions under which work is required to be performed and resulting injury. State Department of Labor v. Yates, 131 Ga.App. 71, 72, 205 S.E.2d 36, 37 (1974). The causative danger must be incidental to character of employment and not independent of master and servant relationship. Francis v. Liberty Mutual Ins. Co., 95 Ga.App. 225, 97 S.E.2d 553 (1957); accord, Skelton v. W. T. Grant Company, 331 F.2d 593 (5th Cir. 1964). "In the course of employment" refers to time, place and circumstances under which the accident took place. 131 Ga.App. at 72, 205 S.E.2d at 37.

Ga.Code Ann. § 114-103 states that where an employee and employer are under provisions of the Act, compensation to the employee "shall exclude all other rights and remedies of such employee . . . at common law or otherwise, on account of such injury . . . or death."

The Georgia Supreme Court interpreted the above sections of the Georgia Code in Southern Wire & Iron, Inc. v. Fowler, ³ supra. There the court held that an employee's sole remedy as against the employer, for failure of employer's president, who made no assault on employee, to furnish the employee a safe place in which to work was under the Workmen's Compensation Act, regardless of the cause for such failure. 217 Ga. at 729, 730, 124 S.E.2d at 739-40. The court pointed out that the general rule in this country is not to allow common law actions against the employer for injuries brought about by a supervisory employee. Practical reasons for not distinguishing between fellow servants and supervisors were there stated. 217 Ga. at 731, 124 S.E.2d at 740. The court continued by citing with approval McLaughlin v. Thompson, Boland & Lee, Inc., supra at n. 2 and Echols v. Chattooga Mercantile Co., 74 Ga.App. 18, 38 S.E.2d 675 (1946). ⁴ Southern Wire concludes that "regardless of the cause for his (corporate defendant's president) failure to provide a safe place to work, the result is the same, the employee's sole remedy against the employer, Southern Wire & Iron, Inc., was under the State Workmen's Compensation Act."

Plaintiff's reliance on Skelton v. Grant, supra, and Smith v. Rich's, Inc., 104 Ga.App. 883, 123 S.E.2d 316 (1961) in support of his theory of vicarious liability would appear to be misplaced. Skelton and Smith were both false imprisonment claims. The decision in the latter was based on Fowler v. Southern Wire & Iron, Inc., supra, n. 1, the case which was reversed by the Supreme Court of Georgia in Southern Wire on the very issue to be decided sub judice. In Skelton, the Fifth Circuit reversed a Georgia district court decision which purportedly relied on Southern Wire barring the common law action of an employee against employer on false imprisonment...