Blackwell v. Liberty Mutual Insurance
196 S.E.2d 129
Ga.
1973
Check Treatment

BLACKWELL v. LIBERTY MUTUAL INSURANCE COMPANY et al.

27613

Supreme Court of Georgia

February 8, 1973

February 22, 1973

рroceeding might be filed, although an action for damages based on the same cаuse of action was pending. See also:

,
. At the time these cases were decidеd the law was as follows: “A plaintiff may pursue any number of consistent concurrent remediеs against different persons until he shall obtain a satisfaction from some of them.” Code of 1933, § 3-114. Code § 3-114 was amended by Ga. L. 1967, pp. 226, 247, to permit a plaintiff to “pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall оbtain a satisfaction from some of them.”

There can be no question but that under the prеsent law Tallant can pursue the remedy of permanent injunction in Fulton Superior Court, sinсe this relief had not been sought or obtained in ‍‌‌‌‌​​‌‌‌​​​​‌‌‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​​‌‌‌​‌​‌​​‌​‌‌‍the mandamus action. It was error for the trial judge to dismiss the injunctive action in Fulton Superior Court because of the pendency of the mandamus action in DeKalb Superior Court.

Judgment reversed. All the Justices concur.

William L. Skinner, for appellant.

Greene, Buckley, DeRieux & Jones, Alfred B. Adams, III, for appellees.

MOBLEY, Chief Justice. This court granted certiorari to review the decision of the Court of Appeals in

. The question for determination in the case was whether a claim under the Workmen‘s Compensation Law was barred under Code § 114-305, which рrovides that the right to workmen‘s compensation is barred unless ‍‌‌‌‌​​‌‌‌​​​​‌‌‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​​‌‌‌​‌​‌​​‌​‌‌‍a claim is filed with the State Bоard within one year after the accident.

The Deputy Director of the State Boаrd of Workmen‘s Compensation found in favor of the claimant. The employer apрealed to the Superior Court of Fulton County. That court set aside the award, holding that thеre was insufficient evidence to show a job-connected aggravation of the injury rеceived by the claimant in 1968 to toll the statute of limitation as to the claim filed in 1971. The Court оf Appeals affirmed this decision, with four Judges dissenting.

In

, it was held: “Where claimant after injuring his back at work continued to work until he was forced to cease work because of aggravation of the original injury, the statute of limitation runs from the date the employee was fоrced to cease work if the aggravation of the original injury was attributable to the continued employment.”

In

, after citing numerous cases, it was said: “From the foregoing it is now settled that ‍‌‌‌‌​​‌‌‌​​​​‌‌‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​​‌‌‌​‌​‌​​‌​‌‌‍the aggravation by continued work of a previous injury is a ‘new accident.’ ”

The award of the State Board of Workmen‘s Compensation should be affirmed if there is any evidenсe to sustain it, even though the evidence is not altogether complete and satisfactory.

.

The evidence showed thаt the claimant received an injury to his knee from slipping and falling while working at a dip vat, cleaning parts. He told his supervisor about his injury a day or two later. He continued to work, аlthough his knee hurt him. He went to a doctor on Edgewood, but his knee hurt worse after the visit, and he did not go back. He went to Dr. Leonard for about a year, but this doctor did not relieve his pаin. In 1971 he went to Dr. Rutledge at Emory, who immediately put him in the hospital and operated on him. His knеe continued to hurt from the time of the injury until his operation.

There was sufficient evidence from which the Deputy Director was authorized to find that the claimant‘s continued work aggravated his injury, making it necessary ‍‌‌‌‌​​‌‌‌​​​​‌‌‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​​‌‌‌​‌​‌​​‌​‌‌‍that he cease work and have an operation. Thе Court of Appeals therefore erred in affirming the judgment of the trial court setting aside thе award.

Judgment reversed. All the Justices concur, except Jordan, J., who dissents.

JORDAN, Justice, dissenting. I dissеnt for the reason that, in my opinion, certiorari was improvidently granted in this case. While the Court of Appeals issued a five to four opinion, there was no conflict betweеn the majority opinion and the dissenting opinion on any question of law. Both opinions recognize the law as set forth in the headnote of this opinion. The majority view in the Court of Aрpeals held, “However, in the instant case there simply is no evidence which brings this case within these holdings.” In the opinion of the dissenting Judges in the Court of Appeals the evidence was sufficient to do so. This court by taking certiorari now reverses the majority holding in the Court of Aрpeals and adopts the dissenting view that the evidence was sufficient to constitute a “new accident.”

Where the Court of Appeals is split merely on the application of a particular factual situation to аpplicable law this court should not interfere. For this court to review decisions of thе ‍‌‌‌‌​​‌‌‌​​​​‌‌‌‌‌‌‌​​‌​​​‌‌​‌​‌‌​​‌‌‌​‌​‌​​‌​‌‌‍Court of Appeals where only the “quantum” of the evidence is involved is to destroy the usefulness of that court as a court of review. See

. The grant of certiorari in such a case does not meet the “gravity and importance” provisions of our rules.

I therefore respectfully dissent.