*1 Evans, Florida &c. R. Co. v.
Am. St. R. Hudson, Atlanta &W.P.R. Co. v. 29).” McDonald, And in Atlantic C. L. R. Co. v. (6) (70 249), it is held: where "Except a particular act is declared to be either negligence, statute or valid ordinance, municipal should not instruct the jury what care should be ordinary requires cases)... done in a particular case ... in (citing The error the charge complained of was sufficient to require of a grant new trial.”
But in the case judice, sub did not plaintiff give the trial judge proper notice of what he objection was interposing in the language charge, whereby a correction might be made. He made a very lengthy objection to this excerpt, mainly ground that emergency case, was not involved in the and then said: "We say that this is in argumentative that was applied to a specific course, situation.” Of charge applied fact a "specific fact situation,” as true of much of the in language every If charge. plaintiff objected had the ground that in charge argumentative that it instructed the jury that certain conduct on the a part of would render him not liable taking such defendant action, and that it therefore invaded the province jury such respect, then objection would have met the test laid down 70-207 and in the decisions thereon, based Aultman, including case ofBlack v. Ga. App. 826 336), Ga. Power Co. v. citing Maddox, 393), which has been partially disapproved as being too broad in requiring a correct instruction in place objected to in A-1 Bonding Hunter, Service v. b), BARRY v. AETNA LIFE & CASUALTY
49810.
COMPANY et al. Judge. Marshall, claim for of his denial appeals Claimant record shows compensation. workmen’s in 1966 started back trouble that history had a in back while to his he received an when a claim He filed Massachusetts. Hyannis, restaurant laws of that state under the workmen’s amount $4,800, the exact $3,000 and between *2 Florida, and then moved to Claimant disputed. being here, weeks two intermittently "two weeks after in Ft. restaurant there,” work another began he he day employment in 1971. On the first Lauderdale for workmen’s made a claim his back and again injured $5,000 to law and received under Florida He then the exact amount. $9,000. disputes he Again Atlanta, employment and obtained Georgia, moved to On the Hotel. at the Sheraton-Biltmore the restaurant lifting back while his again injured of work he day first subject the this is pounds, and weighing meat to the All three of these were the claim. present the back. same area of he told the testified that
At the the claimant hearing, "down Biltmore hired him that he was chef at the who I heavy lifting I can’t do back, light but can do work... my testified I to do is some He also light things.” ... all want "felt and was good” he started work he that when this would be that he could do the work but that confident go for him to see he could back a test of work period work. the claim. and denied
The director entered and after once by The denial was the state board approved the findings, superior remanded for additional being affirmed. court in that the errors
The claimant enumerates the supported by of the director are not following findings (1) has not carried evidence: "that the claimant an accident burden of that he sustained proving of his in and out of the course injury which arose (2) not been "had employment,” that the claimant to his former by released to return treating physician (3) Lauderdale, "any that in Ft. employment” have was that the claimant disability may presently medical preexisting on brought by disregard this recommendations.” Held:
We with claimant agree that record does not the first two support findings enumerated above. The testimony of the claimant was that he job was following instructions of the chef he lifted when meat that resulted in his back injury. testimony This is witnesses, supported by not other but it is not rebutted by employer, and is therefore as fact. The record accepted by also shows claimant had been released who treated him in physician Florida for his there. narrative, The doctor’s dismissal dated February 1972, states, "This patient being dismissed as date; ... he ready ... is now for dismissal ... It is my has reached full maximum medical opinion patient benefits and be may released from treatment.” Except medication, brace, some and a back heating pads was under care of this doctor when he came to Atlanta or at the time of the injury.
However, the evidence does the director’s support pre-existing on brought disregard of medical recommendations. The claimant admitted that he had been told by his doctor *3 in Florida to seek only sedentary type work. But does not result conclusion that claim be denied.
"No compensation shall be
for an injury
allowed
death due to the employee’s wilful misconduct...” Ga. L.
"
(Code
114-105).
177;
1920,
1931,
7,
p.
pp.
§
43
'The
general
rule
instructions,
is that mere violations
of
orders, rules,
statutes,
ordinances and
and the
of
doing
hazardous
obvious,
acts where the danger
not,
do
more,
law,
without
as a matter
constitute wilful
misconduct
. . . Such violations or failures or refusals
generally
constitute
mere
and such
negligence,
negligence, however great, does not constitute wilful
misconduct or wilful failure or refusal
perform duty
statute,
required by
and will not
recovery
defeat
”
employee or his dependents.’
Little,
(64
Armour & Co. v.
work. The claimant was
the instructions of
following
his
when he lifted the meat and
supervisor
supervisor
his
knew of his back condition. It had been
year
over a
since
(a
operation
his back
"Lumbar
and dis-
laminectomy
left”)
4,Lat
months since he
cectomy
eight
circumstances,
released from treatment. Under
these
even
amounts
of the medical rec-
"disregard
ommendations” his
to return
attempting
to work was
not "wilful misconduct” such as to bar
coverage
his
under
the Workman’s Compensation Act. "To hold otherwise
penalize
would
the claimant
to continue
attempting
even
hurt
though
to some extent.” Aetna Cas. &
907).
Sur. Co. v.
Cagle,
App.
Ga.
SE2d
In addition,
the fact
the claimant
had a
pre-existing
does
bar
injury
recovery
his
for a second
injury. Instead the courts have held that "the aggravation
of a
oth
pre-existing infirmity,
congenital
whether
erwise,
is compensable.” Thomas v. Ford Motor
874);
Ga.
SE2d
Employers
Johnson,
Assur. Corp. v.
The aggravation
a previous
injury by
continued work is a "new accident.” Blackwell v. Liberty
129); National
Mut. Ins.
Pruitt v. Ocean Acc. &c. Guarantee Corp., Ga.
While the claim for an aggravated pre-existing is not prohibited, is limited by Code (Code which we deem applicable to this injury. does not apply thereto, because the amendment L. 1151, cannot be applied retroactively. 114-410 does not apply because claimant’s injuries are not permanent injuries as spe- 114-406.) cified under Code Ann. "If
provides: an employee who suffers an *4 employment has a permanent disability or has sustained a permanent injury, 114-406, such as specified in section elsewhere, suffered he shall be entitled compensation to for the only degree of incapacity which would have resulted from the later if accident the disability earlier or had injury not existed.” While claimant has not sustained § 114-406, the injury Ann. permanent under Code a "permanent partial dis- a he suffered indicates evidence injuries. prior ability” result of as a interpreted as so Code section courts have injuries liability only . employers employees for . . subject to "to employment” during resulting of... the time injury prior employee compensate if the as the and not to v. Ins. Co. Mut. American had never occurred. 101); Georgia Service Ins. Ga. 771 " 402). '[W]here an Lord, injuries permanent su two sustained has upon have perimposed other, and the the one determining employments, in in different been sustained disability the employee’s attributable the extent of (current) employment, during injury his last Compensation first should of Workmen’s Board the determine disability the last after to exist found the total disability exist after found to determine the injury the latter and subtract elsewhere earlier sustained thereby arriving the extent of at former, from disability and com the last to be attributed to employer.’” Acc. pensated by Dunn v. the last Hartford also See &c. Independent & Acc.Ins. Miller v. Life attempt made have no Here we disability the extent finder of fact to determine previous injuries, rate of the amount instance, and whether awarded each any temporary permanent. there Nor is resulting support a of total evidence to testimony only present injury. The of a doctor from the claimant’s deposition regard effect to the was from the bending requiring to do work that he would not be able light, something might lifting, like be able to do but "he any, disability, degree night is watchman.” The supra, Miller, as to Brock, Dunn and undetermined. See regard. in this the duties of the finder of fact " affirmatively appears award 'Where theory, and that for this erroneous based an the evidence not considered all of reason the board has principles, applicable legal light of correct be remanded to the board for further should case *5 532
..'" General Motors Corp. Hargis, 143, 144 v. App. (150 SE2d
We must therefore reverse the order of the superior court and remand the case to the state board to enter conclusions consistent with the above. Deen,
Judgment J., Stolz, J., reversed. P. concur. Argued 1, 1974 1974 Decided October November Rehearing 1974 denied December
Aynes, Burger, Kirby, Genius & RichardR. Kirby, appellant.
Skinner, Wilson, Strickland, Beals & Warner R. Wilson, Jr., Benson, Jr., Earl B. for appellees. Rehearing.
On Motion for Judge. Marshall,
On motion for rehearing
appellee has questioned
§
applicability
of Code
injuries
114-408 to prior
(claimant’s
back)
injuries to his
which are not specified
under
handicaps
words,
§
In
114-406.
other
§
does Code
114-408 apply only
§
to Code Ann.
114-406
injuries? Neither
in American Mut. Liability Ins. Co. v.
(142
101)
Brock,
We note that with amendment of Code in 1143, 1151, Ga. L. the deletion of the "same that Code Ann. 114-409 will employment” requirement, a claimant apply the future to the situation where future, In the anywhere. prior suffers a Code 114-408 distinction between receiving employee latter is "still that in the must be injury” previous for a while entitled to longer entitled is no to com- former the incapacity pensation must which but has residual determining the for the second considered in award be injury. rehearing Stolz, Deen, J.,P. Motion denied. J., concur. 49298. TISCHMAK v. THE STATE. Per curiam. The defendant was convicted under a two-count involving
indictment. On the first count sale phencyclidine, year the defendant was sentenced to one jury involving based on the verdict. On the second count possession marijuana, jury of less than one ounce of guilty. also found the defendant trial sentencing the defendant set the sentence under the provided second count at six months and the sentences *7 consecutively. were to run
The defendant filed a motion for new trial and being appealed overruled to this court. Held:
1. Counsel for the defendant contends that the trial overruling quash erred in motion in- phencyclidine drug prohibited dictment because not a Georgia Drug Abuse Act. Control Code Ann. Ch. (Ga. (now repealed by 79A-9 L. Ga. L. case)). p. 1974, 221 but in effect for this Georgia Drug prohibits Abuse Control Act depressant drugs sale of or stimulant as therein defined. depressant Under Act, the definitions within drug "Any quan- drug any stimulant is: which contains tity designated regulations by present of a substance promulgated having potential under the Federal Act as depressant for abuse because itsof or stimulant effect on system hallucinogenic the central nervous or its effect.”