47 Ga. App. 367 | Ga. Ct. App. | 1933
The plaintiff sued the insurance company on an accident and health insurance policy providing disability benefits, on account of an injury to his left eye. The company’s defense was based upon a clause in the policy, that “this insurance shall not cover injuries arising out of, or in the course of, any employment for wage or profit.” The facts are not in dispute. On the day of the injury the plaintiff was working on Peachtree road in or near Atlanta. His duties were to “send stuff up to the men on poles,” which were being set for Georgia Power Company
1. An employee is not estopped or debarred by an agreement with his employer, or an approval and award thereon, for compensation for an injury under the workmen’s compensation act, from maintaining an action against an insurance company which was not the carrier of the employer’s liability insurance or a party to the agreement or award under the compensation act or involved in any tort causing the injury, upon a health and accident policy of such company, for benefits because of such injury. Neither the act itself nor any principle of estoppel or legal rule will permit the company to relieve itself from the obligations of the policy by showing that the plaintiff has already received or is receiving compensation for the same injury from his employer or the insurance carrier through a voluntary agreement of the parties at interest. Nor does an award under the act constitute an adjudication as to the rights and remedies of the plaintiff in relation to the defendant company. The question is not what was agreed and determined in the workmen’s compensation proceedings, but whether or not a recovery can be had under the terms of the policy and the facts of the injury. See 28 R. C. L. 832 (§119). As to the effect of a voluntary settlement on an award under the act, see U. S. Casualty Co. v. Smith, 34 Ga. App. 363, 366 (129 S. E. 880).
2. While the particular question under facts similar to those in this case has not been decided by our courts, the recent decision in Ocean Accident & Guaranty Co. v. Farr, 47 Ga. App. 110 (169 S. E. 684), is closely analogous; and the decisions of other jurisdictions are persuasive authority in construing the language of compensation acts which are almost identical with that of the instant policy. The overwhelming majority support the contention of the defendant company that an injury such as that here shown is one “arising out of or in the course of the employment.” The interruption of plaintiff was but temporary in order to attend to a call of necessity. The employer had provided no toilet facilities, and none appear to have been available other than as sought by the plaintiff, from which he was returning when injured. “It has been held that acts of ministration by a servapt unto himself, such as
3. Under the law and the undisputed facts, the appellate division of the municipal court did not err in awarding a final judgment for the defendant, and the superior court did not err in overruling and dismissing the certiorari.
Judgment affirmed.