Scott v. Savannah Elec. & Power Co.
| Decision Date | 16 July 1951 |
| Docket Number | No. 2,No. 33615,33615,2 |
| Citation | 84 Ga.App. 553,66 S.E.2d 179 |
| Parties | SCOTT v. SAVANNAH ELECTRIC & POWER CO |
| Court | Georgia Court of Appeals |
Syllabus by the Court
A special employee injured while in the course of his employment and as a result thereof may recover compensation under the compensation act against his general employer or against his special employer or proceed against both, and if he recovers compensation from his general employer, he cannot maintain an action against his special employer for damages at common law based upon the alleged negligence of that employer. Such special employee is not a third person against whom a common-law action will lie under the provisions of the Workmen's Compensation Act.
Walter N. Scott, hereinafter called the plaintiff, brought suit for damages under the common law in the City Court of Savannah on June 14, 1950, against the Savannah Electric & Power Company, hereinafter called the defendant, and alleged that on June 17, 1948, while employed by the Savannah Machine & Foundry Company, as a machinist, Bob Sheffield, his foreman and immediate superior with said foundry company, ordered and directed that the plaintiff go to the electric company to repair a turbine; that it was his duty to obey said order, which he did, and that while engaged in working for the electric company, pursuant to said order from Sheffield, as afore said, the plaintiff was injured when the current jumped to his body and caused him to fall. The plaintiff contended that the defendant electric company through its alter ego was negligent in ordering him to engage in the work of removing a water pipe line without informing him of the imminent danger and risk he ran from electric current jumping from a bus bar to his body while same was wet with perspiration; that the plaintiff's body was wet with perspiration when he was ordered to do said work; that said defendant was also negligent in failing to provide him with a safe place wherein to do said work and to protect him while doing so from the danger of such electricity jumping to his wet body; and that the defendant should have provided him with rubber clothes or a rubber sheet to protect him from said electric current.
On August 25, 1950, the plaintiff amended his petition by adding thereto count two in which he set up in addition to the matters set out in count one that when the water line pipes were cut a quantity of rusty water was spilled over and on the ladder on which the plaintiff was working and on the floow beneath same, so that such ladder and the floor did become conductors of electricity from uninsulated wires, and thus the danger to the plaintiff from electric shock was greatly enhanced, and that the wet floor and ladder were observed by one Whitney, who was present in the room as the alter ego of the defendant at the time this water got on the ladder and the floor and the plaintiff was injured, and that while Shitney was an experienced electrician and knew the danger of the floor and the ladder becoming wet and becoming purveyors or conductors of electric current, he did not give to the plaintiff (who was ignorant of such danger) any warning of his danger.
Thereafter, on October 13, 1950, the defenant demurred generally to the plaintiff's petition, as amaneed, on the ground that no cause of action is set out against it in count one, and also that count two sets out no cause of action against it.
A further amendment to counts one and two of the petition was allowed and filed October 4, 1950, wherein it was set up that the plaintiff received compensation under the compensation act for about a year and a half in the aggregate sum of $1,480, when the plaintif entered into a stipulation with his employer, the Savannah Machine & Foundry Company and the insurance carrier, the U. S. Fidelity p Guaranty Company, by which he was paid a lump sum settlement of $3,012.58. A copy of this award was appened to and made a part of the amendment. In the amendment the plaintiff averred that the Savannah Electric & Power Company and the Savannah Machine & Foundry Company are not joint tort-feasors in the infliction of the plaintiff's injury, but that the electric company, as a third party, is solely responsible to the plaintiff for the injury and damage sustained by him as alleged, and it is plaintiff's right to sue and hold said electric company liable for the full damages sustained, and that plaintiff is willing for the sum paid him under the compensation act, to-wit; $4,492.58, to be credited to the liability of said electric company.
Thereupon, the defendant on December 5, 1950, renewed its general demurrer to count one of the plaintiff's petition as amended, and to count two of said petition as amended, for the reason that same failed to set forth any cause of action against this defendant. On March 21, 1951, the trial court sustained said general demurrers to both counts and dismissed plaintiff's petition, as amended, as follows:
'The pleadings in this case show: First, that the plaintiff was a 'special employee' of the defendant, and that such 'special employee' is under the provisions of the act and the decision of our appellate courts, 'an employee as it defined by and covered under the terms of the Workmen's Compensation Act.' U. S. Fidelity & Guaranty Company v. Stapleton, 37 Ga.App. 707 [141 S.E. 506]; Cooper v. Dixie Construction Company, 45 Ga.App. 420 [165 S.E. 152]; Liberty Lumber Company v. Sile[a]s, 49 Ga.App. 262 [175 S.E. 265]; Liberty Mercantile [Mutual Ins.] Company v. Kinsey, 65 Ga.App. 433 [16 S.E.2d 179]. Second, that the accident giving rise to the plaintiff's injuries arose out of and in the course of his special employment and the employment being subject to the terms of the Workmen's Compensation Act is exclusive of other rights and remedies. Code sec. 114-103; [Maloney v. Kirby] 48 Ga.App. 252, ; Webb v. Tubize-Chatillon Corp., 45 Ga.App. 744 [165 S.E. 775]. Third, that according to the award of the Workmen's Compensation Board, the plaintiff has been compensated in...
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...will lie under the provisions of the (Workers') Compensation Law, as provided in (OCGA § 34-9-11(a)).' Scott v. Savannah Elec. & c. Co., 84 Ga.App. 553, 557-558 (66 SE2d 179) (1951). 'Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt wi......
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