State Highway Dept. of Ga. v. Turner

• Decision Date: 08 January 1945
• Docket Number: 15051.
• Citation: 32 S.E.2d 805,198 Ga. 795
• Parties: STATE HIGHWAY DEPARTMENT OF GEORGIA v. TURNER.
• Court: Georgia Supreme Court

32 S.E.2d 805

198 Ga. 795

STATE HIGHWAY DEPARTMENT OF GEORGIA v. TURNER.

No. 15051.

Supreme Court of Georgia

January 8, 1945

Syllabus by the Court.

The judgment of the court below with respect to the ground of constitutional attack upon the amendment to the Workmen's Compensation Law, approved March 20, 1943, Ga.L.1943, p. 401 dealt with in the first division of the opinion, stands affirmed by operation of law, the court being equally divided. The other exceptions are without merit for the reasons set forth in the opinion.

T Grady Head, Atty. Gen., Marshall L. Allison, Asst. Atty Gen., and L. C. Groves, of Atlanta, for plaintiff in error.

John G. Slappey, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Presiding Justice.

The facts in this case appear to be similar to those involved in State Highway Department of Georgia v. Bass, 197 Ga. 356, 29 S.E.2d 161. In that case some of the questions here raised were passed upon and some were not passed upon, as not having been presented by the record. An employee of the State Highway Department was injured in the work of his employment on January 21, 1943, prior to the passage by the General Assembly of the act approved March 20, 1943, Ga.L.1943, p. 401, now embodied in the Code Supp., § 114-101A. The judge of the court below sustained the award to which exceptions are taken by the State Highway Department. The act of the General Assembly, as stated in section 1, now embodied in the Code Supp. § 114-101, after repealing section 114-101 of the Code of 1933, defining 'employer' and 'employee' under the Workmen's Compensation Law, provides as follows: "Employer' shall include the State of Georgia and all departments thereof, any municipal corporation within the State, and any political division thereof, and any individual, firm, association or corporation engaged in any business operated for gain or profit, except as hereinafter provided, and the receiver or trustee of the same, and the legal representative of a deceased employer, using the service of another for pay. If the employer is insured this term shall include his insurer as far as applicable. 'Employee' shall include every person in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business, occupation or profession of the employer and, except as hereinafter provided, minors are included even though working in violation of any child labor law or other similar statute: Provided, that nothing herein contained shall be construed as repealing or altering any such law or statute. Any reference to any employee who has been injured shall, when the employee is dead, include also his legal representatives, dependents and other persons to whom compensation may be payable, pursuant to the provisions of this law.' Section 2 of said act, now embodied in the Code, Supp. § 114-101A, provides as follows: 'So far as concerns the State of Georgia or any department thereof which has been operating under the terms of the workman's compensation law, said State and such departments thereof shall be deemed to have been included in the original law under definition of 'employer.' Any payments heretofore made under awards of the Industrial Board to State employees are hereby ratified and confirmed and any payments of awards which were being made by the State or any of its departments on or before February 1, 1943, but discontinued on account of the State and its departments not being included in the definition of 'employer' shall be resumed as of the date of discontinuance, and compensable accidents which occurred prior to the passage of this law (§§ 114-101 to 114-101b) for which awards were not made but for which awards are hereafter made, shall be paid by said State or the departments thereof in the same manner as other awards heretofore or hereafter made.' 1. This court, as it did in the Bass case, stands equally divided on the question of whether the provisions of the act making the several departments of the State of Georgia amenable to the Workmen's Compensation Law, are unconstitutional in so far as the right sought to be conferred upon the employee relates to an injury which occurred prior to the passage of the act.

2. The act of the legislature referred to, making the State of Georgia and the various departments thereof employers within the meaning of the Workmen's Compensation Law, and therefore subject to its provisions, is not unconstitutional so far as the State Highway Department is concerned, as failing to provide sufficient procedural machinery for notice and service to make the State of Georgia or its departments subject thereto. Irrespective of what might be true as to other departments of the State, there would not appear to be any difficulty or doubt under the terms of the Workmen's Compensation Law as to the proper notice which an injured employee of the State Highway Department must give of the accident, as provided for by the Code, § 114-303 as follows 'Every injured employee or his representative shall, immediately on the occurrence of any accident, or as soon thereafter as practicable, give or cause to be given to the employer, his agent, representative, or foreman, or the immediate superior of the injured employee, a notice of the accident.' Nor would there appear to be any uncertainty as to the character of notice which the industrial board must give the Highway Department of the hearing before it as provided by the Code, § 114-706. This is true for the reason that there would not seem to be any...