Southern Wire & Iron, Inc. v. Fowler

• Decision Date: 08 March 1962
• Docket Number: No. 21472,21472
• Citation: 217 Ga. 727,124 S.E.2d 738
• Parties: SOUTHERN WIRE AND IRON, INC. v. John FOWLER et al.
• Court: Georgia Supreme Court

Page 738

124 S.E.2d 738

217 Ga. 727

SOUTHERN WIRE AND IRON, INC. v. John FOWLER et al.

No. 21472.

Supreme Court of Georgia.

March 8, 1962.

Rehearing Denied March 23, 1962.

Syllabus by the Court

When the employer and employee are under the provisions of the Workmen's Compensation Act, injuries to the employee which arise from the failure of the employer to provide the employee a safe place to work are compensable under the act. All other rights and remedies of the employee 'at common law or otherwise' arising from the relationship of employer and employee are excluded.

Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, Atlanta, for plaintiff in error.

Poole, Pearce & Hall, John S. Patton, John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., Atlanta, for defendants in error.

HEAD, Presiding Justice.

John Fowler filed an action for damages against Southern Wire & Iron, Inc., and its president, Charles Z. Borochoff. The general demurrers of both defendants were overruled, and on review the Court of Appeals affirmed the judgment as to both defendants. See Borochoff v. Fowler, 98 Ga.App. 411, 105 S.E.2d 764, for a statement of the facts and the opinion of the court. Thereafter Southern Wire & Iron, Inc., in a motion for summary judgment asserted that at the time the plaintiff received his injuries he was an employee acting in the course of his employment, and that at that time the movant was subject to the Workmen's Compensation Act of Georgia. It was contended that the employee's exclusive remedy was before the Workmen's Compensation Board. The motion for summary judgment was granted, and the plaintiff excepted. On review the Court of Appeals reversed. Fowler v. Southern Wire & Iron, Inc., 104 Ga.App. 401, 122 S.E.2d 157. The application for writ of certiorari of Southern Wire & Iron, Inc., was granted by this court.

1. The decision of the Court of Appeals in Borochoff v. Fowler, 98 Ga.App. 411, 105 S.E.2d 764, supra, is the law of the case as to the right of the employee Fowler to proceed in his action for damages against the defendant Borochoff. As to the corporate defendant it was held that the petition was not subject to general demurrer since it did not show that the corporate defendant was under the Workmen's Compensation Act.

2. Where an employer and employee are under the provisions of the Workmen's Compensation Act, compensation to the employee 'on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee * * * at common law or otherwise.' Code § 114-103. Under the provisions of § 114-102 the employee's right to recover for an 'injury' or 'personal injury' is limited to an accident arising out of and in the course of the employment, and does not cover 'injury caused by the wilful act of a third person.' Under § 114-105 compensation shall not be allowed 'for an injury or death due to the employee's wilful misconduct.'

The opinion of the Court of Appeals here under review recites that the parties stipulated in the trial court that the corporate defendant is under the provisions of the Workmen's Compensation Act. The scope of the Workmen's Compensation Act in this State, and the injuries included within the meaning of the word 'accident,' were stated by Judge Felton (now Chief Judge) for the Court of Appeals in Reid v. Lummus Cotton-Gin Co., 58 Ga.App. 184, 185, 197 S.E. 904, 905, as follows: 'The Georgia workmen's compensation act was intended to include injuries resulting from the negligence of the employer in every particular, whether arising under common-law or statutory duties, and the pain and suffering incident to such injuries. * * * The word 'accident,' as used in the act, includes every injury except diseases not naturally growing out of injuries arising out of and in the course of employment, injuries caused by the wilful act of a third person directed against such employee for reasons personal to him, and wilful misconduct on the part of the employee, and the act precludes action at common law or otherwise. [Italics ours.] Ga.L.1920, pp. 167, 176, § 12; Horn v. Planters Products Co., 40 Ga.App. 787, 151 S.E. 552; Teems v. Enterprise Manufacturing Co., 41 Ga.App. 708, 154 S.E. 466; Berkeley Granite Corp. v. Covington, 183 Ga. 801, 807, 190 S.E. 8; Hockmuth v. Perkins, 55 Ga.App. 649, 191 S.E. 156. Code, § 114-104, applies solely to penalties and does not so limit or qualify § 114-103 as to provide any greater remedy to the employee.' In Hardware Mutual Casualty Co. v. Sprayberry, 195 Ga. 393, 24 S.E.2d 315, this court approved the construction of the word 'accident' as set forth in Reid v. Lummus Cotton-Gin Co., supra.

In McLaughlin v. Thompson, Boland & Lee, Inc., 72 Ga.App. 564, 34 S.E.2d 562, it was stated in part as follows: 'Where an employee has accepted the Workmen's Compensation Act as is therein provided, his rights against the employer to recover on account of injuries sustained by reason of the breach of any duty arising out of the relation are determinable solely under the provisions of the act, and are not determinable at common law. Code, § 114-103; Webb v. Tubize-Chatillon Corporation, 45 Ga.App. 744, 165 S.E. 775; Stebbins v. Georgia Veneer & Pkg. Co., 51 Ga.App. 56, 179 S.E. 649.--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.'

The case of Echols v. Chattooga Mercantile Co., 74 Ga.App. 18, 38 S.E.2d 675, was an action for damages based upon an assault on the employee by the manager of the corporate defendant. In the opinion it was held that: 'The injuries which ...