Walker v. Employers Liab. Assur Corp.

• Decision Date: 16 September 1941
• Docket Number: No. 29165.,29165.
• Citation: 17 S.E.2d 306
• Parties: WALKER. v. EMPLOYERS LIABILITY ASSUR CORPORATION et al.
• Court: Georgia Court of Appeals

17 S.E.2d 306

WALKER.

v.EMPLOYERS LIABILITY ASSUR CORPORATION et al.

No. 29165.

Court of Appeals of Georgia,

Division No. 2.

Sept. 16, 1941.

Rehearing Denied Nov. 19, 1941.

Syllabus by the Court.

Under Ga.L.1937, pp. 528, 530, amending section 2(d) of the Workmen's Compensation Law relatively to subrogation (Code Ga.Ann, § 114-403), the amount of compensation due by the employer is not reducible by the amount paid by an alleged third party tort-feasor in a voluntary settlement.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Proceeding under the Workmen's Compensation Law by Charles N. Walker, claimant, opposed by the Employers Liability Assurance Corporation and others, wherein an award was made in favor of claimant. To review a judgment of the superior court, denying claimant's appeal from an order of the Industrial Board granting insurance carrier's petition that total compensation awarded be reduced by the amount received by claimant from third person in voluntary settlement of third party's alleged liability for claimant's injuries, claimant brings error.

Judgment reversed.

On May 31, 1937, Charles N. Walker, an employee of Charles N. Walker Roofing Company, was injured in an automobile accident. On June 27, 1937, an award was made in his favor by the Industrial Board against his employer and its insurance carrier. Walker sued C. B. Howard in the superior court of DeKalb County to recover damages for personal injuries to Walker allegedly due to the negligence of Howard. The insurance carrier was not a party to the suit and did not intervene therein. Walker and the insurance carrier failed to make a joint settlement with Howard and they agreed that each should make his and its own settlement. Walker received net $675 from Howard and the insurance carrier received $100 and the case against Howard was dismissed. The insurance carrier continued its payments to Walker as provided in the award until it had paid all but $675, and applied to the Industrial Board for a hearing on the question whether it was entitled to have the total compensation reduced by the amount of net damage received, $675. The Industrial Board granted the petition of the insurance carrier and terminated the remaining award. The appeal of Walker to the superior court was denied and he excepted to that judgment.

Edgar Watkins and Allan Watkins, both of Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, of Atlanta, for defendants in error.

FELTON, Judge (after stating the foregoing facts).

The Act of 1922 (Ga.L.1922, pp. 185, 187) providing for subrogation, section 2(d) ofthe Workmen's Compensation Law, was as follows: "When an employee coming under provisions of this Act receives an injury for which compensation is payable under this Act and which injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereto, the employee, or beneficiary, may take proceedings both against that person to recover damages and against the employer for compensation, but the amount of compensation to which he is entitled under this Act shall be reduced by the amount of damages recovered. If the employee, or beneficiary of the employee, in such case recovers compensation under this Act, the employer by whom compensation was paid, or the party who was called upon to pay the compensation, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the right of the employee to recover therefrom, to the extent of the compensation."

In American Mutual Liability Insurance Co. v. Wigley, 179 Ga. 764, 177 S.E. 568, the Supreme Court held that under the Act of 1922 the amount of compensation was not reducible by the amount paid by a third person in a voluntary settlement after a suit was filed where liability was disclaimed in the settlement. This ruling gave a definite and distinct meaning to the word "recovered" in the clause "but the amount of compensation to which he is entitled under this Act shall be reduced by the amount of damages recovered." This meaning clearly precluded the idea of a voluntary...