Western Elec. Co., Inc. v. Capes, 64782

• Decision Date: 21 October 1982
• Docket Number: No. 64782,64782
• Parties: WESTERN ELECTRIC COMPANY, INC. v. CAPES.
• Court: Georgia Court of Appeals

Page 381

296 S.E.2d 381

164 Ga.App. 353

WESTERN ELECTRIC COMPANY, INC. v. CAPES.

No. 64782.

Court of Appeals of Georgia.

Oct. 21, 1982.

Robert E. Shields, Edmund M. Kneisel, Atlanta, for appellant.

Glenville Haldi, Atlanta, John W. Folsom, Decatur, for appellee.

DEEN, Presiding Judge.

We granted an interlocutory appeal from the denial of Western Electric's (WECO'S) motion for summary judgment in Capes' personal injury action for damages sustained by him in an elevator on the appellant's premises. The sole question is whether appellant is a statutory employee under Code § 114-112. Capes was an employee of Macke Company which, under contract with WECO, undertook to place vending machines in the appellant's business premises and service them with snacks and soft drinks. Macke had storage facilities in a part of the basement of one of the buildings where Capes placed the supplies he brought in to WECO by truck, and Capes then serviced the five vending machines located in various parts of the buildings from these storage supplies. He was injured, according to his testimony, as he entered the freight elevator intending to deliver the money changers and snacks to the various vending machines when his foot stuck in glue left from underneath floor tiles which had been removed and he was unable to get it out of the way of the heavily loaded service cart before being struck by it.

Capes received full workers' compensation from his employer Macke. He then sued WECO as a third party tortfeasor. WECO moved for summary judgment on the ground that it was a statutory employer with a potential liability for workers' compensation and thus immune from a tort action. The trial court denied the motion. WECO then petitioned for an interlocutory appeal and we granted the application in order to determine whether this case is controlled by our decision in Godbee v. Western Electric Co., Inc., 161 Ga.App. 731, 288 S.E.2d 881 (1982).

1. Appellee has moved to dismiss this appeal for the stated reason that the notice of appeal was not timely filed. The uncontested facts are as follows: Appellant's application for interlocutory appeal was filed in the office of the Clerk of the Court of Appeals on November 10, 1981. Under Code § 6-701(a)(2) the opposing counsel has 10 days to respond and the Court of Appeals "shall issue an order granting or denying such an appeal within 15 days of the date on which the response of the opposing party is filed with such court or within 25 days of the date on which the application was filed in the event that no response is filed. Within 10 days after an order is issued granting such appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in section 6-802."

The application for review filed in this court clearly stated the name and address of the attorneys involved. The response, filed on November 20, 1981, contained a properly drawn certificate showing service on those attorneys at their correct address. The application was granted by order of this court on December 7, 1981 (the 25th day having fallen on a Saturday). Copies of such orders, like copies of opinions under our Rule 38, are always required to be mailed to counsel if the litigant is represented by counsel or to the party if the proceeding is pro se, a fact with which the attorneys of this state are thoroughly familiar. By misadventure in this case, however, the notice intended by the clerk of this court in the case sub judice to be mailed to the applicant's counsel was in fact directed to a law firm in no way connected with the appellant and was presumably lost. Counsel received no notice of the grant of the application until it made inquiry as to when it might expect a ruling, by which time its 10-day limit for filing of a notice of appeal had run. Upon these facts being made to appear, this court vacated its misdirected order and republished it under date of April 1, 1982. WECO then, within 10 days, filed its notice of appeal in this case.

Appellee contends that this court had no jurisdiction to accept the appeal under these circumstances. We disagree. Code § 24-3624 mandates that upon the docketing of every appeal and every application for appeal in this court the court shall give notice thereof by mail to all attorneys and pro se parties. It is equally the clerk's duty, when an application for appeal is granted, to give notice by mail to all attorneys or pro se parties. See our rules 23 and 24. To so construe Code § 6-701(a)(2) as to abort an appeal to which the applicant is entitled when such applicant is entirely without fault in the premises would be to deny such litigant a right guaranteed by the Constitution of this state and would be a denial of due process. The motion to dismiss the appeal is denied.

2. Code § 114-112, with a single sentence not relevant to this appeal, was enacted as a part of the original Workmen's Compensation Act of 1920. It requires that a principal, intermediate, or subcontractor shall be liable for compensation to the employee of any subcontractor engaged upon the subject matter of the contract to the same extent as the immediate employer, but this is applicable only in cases where the injury occurred on or about the premises on which the principal contractor has...