Williams Bros. Lumber Co. v. Meisel
| Decision Date | 04 December 1951 |
| Docket Number | Nos. 33769,No. 1,33782,s. 33769,1 |
| Citation | 85 Ga.App. 72,68 S.E.2d 384 |
| Parties | WILLIAMS BROS. LUMBER CO. v. MEISEL et al. MEISEL v. WILLIAMS BROS. LUMBER CO. et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in overruling the defendant's general and special demurrers to the petition and in overruling its amended motion for a new trial.
This case is a companion case to Anderson-McGriff Company v. Meisel et al., Ga.App., 68 S.E.2d 377 and Lowe et al. v. Meisel et al., Ga.App., 68 S.E.2d 390, decided this day. Reference is made to the Anderson-McGriff Company case for the statement of facts and the pleadings in the instant case.
Andrews, Nall & Sterne, Thomas E. McLemore, Atlanta, for plaintiff in error.
Israel Katz, W. Neal Baird, Neely, Marshall & Greene, Haas & Hurt, Howard, Tiller & Howard, Atlanta, for defendants in error.
W. Neal Baird, Neely, Marshall & Greene, Israel Katz, Atlanta, for plaintiff in error.
Andrews, Nall & Sterne, Haas & Hurt, Howard, Tiller & Howard, Atlanta, for defendants in error.
1. Special ground four of the amended motion alleges that the court erred in refusing to admit testimony that the deceased stated, about ten minutes after he was struck and while he was still lying on the spot where he was struck, that the taxi-cab was 'driving fast'. It is contended that such testimony should have been admitted as being a part of the res gestae. Whether or not such statement by the deceased was a part of the res gestae, we feel that the statement should not have been admitted into evidence because it was too indefinite to be of probative value as to the speed of the taxicab in view of the more definite testimony of witness Litton that the taxi- cab was traveling at 25 miles per hour; or witness Marshall that it was traveling at 15 or 20 miles per hour; of the defendant Heard that it was traveling at 15 miles per hour, and to witness Barnes that it was traveling at 20 to 25 miles per hour.
2. Ground five of the amended motion for a new trial complains that the court erred in failing to charge without request substantially: 'Gentlemen, if you should find from the evidence that the plaintiff's decedent at the time of the occurrence complained of was crossing Mangum Street at a place which was neither a marked or unmarked crosswalk as defined by the Ordinance of the City of Atlanta which I have read you, and which appears in the amendment of Williams Bros. Lumber Company allowed to their answer, then, in that event, plaintiff's decedent would be guilty of negligence per se * * *.' The court did not err in failing to so instruct the jury. The ordinance pleaded by the defendant Williams Bros. Lumber Company relating to jay walking is as follows: 'Jay walking prohibited.--Pedestrians shall cross streets only at street intersections or crosswalks and shall not cross street or crosswalk intersections diagonally.' The evidence is undisputed that the deceased was crossing Mangum Street at the intersection of Block Place, which is permitted by the above quoted ordinance. It is further contended that there was no unmarked crosswalk at such intersection as defined by § 88-201 of the Atlanta City Code in that there was no sidewalk on Block Place upon which an unmarked crosswalk could be based. The ordinance pleaded relating to crosswalks, defines an unmarked crosswalk as: 'That portion of a roadway ordinarily included within the prolongation or connection of curb and property lines at intersections * * *.' Even if there was no sidewalk laid out on Block Place, it will be presumed that there was a property line of a sufficient distance from the curb line to provide space for a sidewalk of average size and the prolongation of the curb and property lines would constitute enough to denominate an unmarked crosswalk as defined by the ordinance. The evidence did not show that the deceased was not walking within that unmarked crosswalk. Therefore, on the grounds contended for by the defendant Williams Bros. Lumber Company, the court did not err in failing to charge the jury as contended for by such defendant.
3. Grounds six and seven of the amended motion complain that the court erred in refusing to charge upon request that if the jury found that Puritan Mills was negligent and that such negligence combined with that of the defendants to proximately cause the death of the plaintiff's husband, then they should reduce the verdict returned against the defendants by the amount of compensation received by the plaintiff from Puritan Mills' insurer. For a consideration of this question we shall assume for the sake of argument that when the 1937 amendment to Code, § 114-403 was declared unconstitutional in Lloyd Adams, Inc., v. Liberty Mutual Ins. Co., 190 Ga. 633, 10 S.E.2d 46, Code, § 114-403 as it stood before such amendment was revived under the rulings in Wright v. Southern Bell Tel. Co., 127 Ga. 227(2), 56 S.E. 116 and Clark v. Reynolds, 136 Ga. 817, 824(5), 72 S.E. 254. Under such code section the employer or insurer, as the case may be, could recover from a claimant the amount of compensation paid due to the negligence of a third party where there has been a recovery from the third party by the claimant, and such recovery must be a judicial one and not a settlement between the claimant and the third party. Travelers Ins. Co. v. Luckey, 46 Ga.App. 593, 167 S.E. 907. The Georgia Workmen's Compensation Act grants certain rights and remedies to the employee coming under the Act as against the employer that were unknown at common law, but § 114-103 of the Code also takes away from an employee any common law right that the employee might have had to recover from his employer for an injury caused by the negligence of the employer. Workmen's compensation liability arises out of a contract created by law and not out of any theory of tort, and such liability is not concerned with any negligence of the employer or the employee. Assuming for the sake of argument that the evidence showed that Puritan Mills was negligent and that such negligence combined naturally and proximately with that of the defendant to cause the injuries sued for, we think that the question boils down to whether Puritan Mills could be considered as not being a tortfeasor as to the plaintiff and yet be considered as a joint tortfeasor as to the defendants for the purpose of taking advantage of a payment of compensation under the workmen's compensation law as between its 'joint tortfeasor', the Puritan Mills, and the plaintiff. We think not. Compensation paid under the Act is not a settlement of a tort claim. Code, § 114-103 takes away from the employee any common law right of action against the employer for injuries to the employee due to the negligence of the employer and the legal effect of this fact is to completely eliminate the idea that the employer can be a common law tortfeasor as to the employee. Therefore, there is no basis upon which the employer can be a joint tortfeasor with a third person as to an employee where both employer and employee are under the Act. It is true that by virtue of Code, § 114-403 an employer may escape liability for its negligence where such negligence combines with that of another to produce an injury upon an employee of the employer, and would force the third party to pay damages for injuries which were caused not by his negligence alone, but this is one of the benefits that is granted to an employer coming under the Act and compensates for the many instances where the employer must pay compensation for an injury for which he would not have been liable at common law. There is no provision in the Act which would allow the employee, in a suit by the employer under Code, § 114-403 to recover the amount of compensation paid to the employee, to set up a defense that the jury in the suit by the employee against the third party had made a deduction in its verdict of the compensation received by the employee. Therefore, to allow a jury to make such a deduction could result in forcing the employee to account for the compensation twice whereas the law under our assumption as above stated, only requires him to account for it once, and then only to the employer who has paid the compensation and not to a third party. The case of ...
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