Steed v. Liberty Mut. Ins. Co.

• Decision Date: 29 January 1981
• Docket Number: No. 61326,61326
• Citation: Steed v. Liberty Mut. Ins. Co., 277 S.E.2d 278, 157 Ga.App. 273 (Ga. App. 1981)
• Parties: STEED et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 278

277 S.E.2d 278

157 Ga.App. 273

STEED et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.

No. 61326.

Court of Appeals of Georgia.

Jan. 29, 1981.

Certiorari Denied March 31, 1981.

Tyron Elliott, Manchester, for appellants.

John M. Taylor, La Grange, Mary Walton Whiteman, Decatur, Earl Wiggers, Jr., Atlanta, for appellees.

DEEN, Presiding Judge.

1. This is the second appearance of this workers' compensation case. See Terry v. Liberty Mutual Ins. Co., 152 Ga.App. 583 263 S.E.2d 475 (1979) where this court held (1) that the finding of the Board to the effect that the deceased employee's death was not caused by intoxication is sufficiently supported by evidence, and (2) the finding of the Board that the cause of the accident was the deceased's failure to stop at a grade crossing in violation of statute was insufficient, in the absence of a finding that his failure to stop, which admittedly caused his death when his car was hit by an approaching train, was wilful. To constitute a violation of Code § 114-105 resulting in denial of compensation, there must be "wilful misconduct... due to ... wilful failure or refusal to... perform a duty required by statute." Mere negligence in failing to obey the statute is insufficient. National Surety Corp. v. Martin, 86 Ga.App. 77, 71 S.E.2d 666 (1952); Travelers Ins. Co. v. Gaither, 148 Ga.App. 251, 251 S.E.2d 66 (1978).

Whether the statutory infraction results from negligence or wilfulness is a question of fact, and the finding of the Board that the facts proved at the time of a collision between a vehicle driven across a railroad crossing by an employee of the defendant and an oncoming train constitute one or the other of these circumstances is final and may not be disturbed by this court if supported by evidence. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333(2-a), 150 S.E. 208 (1929). This leading case on car-train crossing collisions expressly overruled a prior decision of this court holding that such conduct in and of itself could not constitute a wilful failure to perform a duty required by statute. And in Beck v. Brower, 101 Ga.App. 227, 113 S.E.2d 220 (1960) the issue was aptly summarized as follows: "The controlling case on this question as it relates to violation of traffic laws, Aetna Ins. Co. v. Carroll, 169 Ga. 333, 150 S.E. 208 (supra) is grounded on two reasons, one being that a driver who knowingly approaches a railroad crossing at a speed in excess of the lawful limit, which excessive speed proximately causes his death, is guilty of criminal misconduct beyond mere negligence, the other being that where the Board of Workers' Compensation finds such conduct to be wilful misconduct, that finding is binding on the appellate tribunals. Had the board in the Carroll case found that the conduct of the employee there was not wilful misconduct but resulted from simple negligence, the wording of the decision is such as to indicate that the finding, too, would be conclusive."

2. Upon the remand of this case the Board, which had previously failed to characterize the fatal act as either negligence or wilful misconduct, amended its award to make a specific ruling that the death resulted from wilful misconduct in failing to...