Critchfield v. Aikin

33 Ga. App. 668 | Ga. Ct. App. | 1925

Luke, J.

(After stating the foregoing facts.) In view of the insistence of the defendant that the allowance of the amendment of May 12th was error, and that the overruling of his demurrer to the petition as amended was likewise error, we deem it proper to discuss these questions first.

In the light of the law, the original petition specified the duty of the defendant to furnish plaintiff with suitable appliances to carry on the work of running the sawmill, a definite breach of that duty by supplying inferior belting and unsuitable belt-lacing, and consequent injury to plaintiff by such breach of duty. The amendment neither changed the original cause of action nor set up a new one. It merely deprived the defendant of certain defenses hereinafter enumerated. The amendment was properly allowed. We think this conclusion is sustained in principle by the reasoning in the case of Ellison v. Georgia Railroad Co., 87 Ga. 691 (13 S. E. 809).

The amendment being properly allowed, the next question is: Did the original petition, with the amendment, set out a cause of action? Conceding that the plaintiff was negligent in using defective lacing for the belt, with knowledge of the defect, what then was the effect of the amendment? Certainly to deprive defendant of the following defenses: (a) that the employee was negligent; (&) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risk of the injury. Workmen’s compensation act, Ga. L. 1920, p. 167, sections 16, 67. The defendant says, however, that the original petition affirmatively shows that plaintiff was precluded from, recovery, and that while the amendment would exclude the enumerated defenses, it could not have the effect of perfecting the petition. If the effect of the compensation, act is to preclude the defendant from making the defenses stated in section 16 thereof, surely it would be quibbling to say that because, in truly and accurately stating his case, the plaintiff showed that he was negligent, or that his injury was caused by the negligence of a fellow servant, or that he assumed the risk of his employment, he could not recover. To take this view would oftentimes nullify the effect of the act, and deprive an honest plaintiff of his legal rights. One of the main objects of the workmen’s compensation act was to enable an injured employee to recover from an employer when, of course, he comes under the act, according to a scheduled and limited rate of compensation, regardless of assumption, of risk dr of whose negligence caused the injury; thus assuring the emploj^ee of some-compensation fpr the injury and assuring the employer that his liability will be limited. This being'true, the plaintiff, in order to have a cause of action under the workmen’s compensation act, or where the employer refuses to operate under the act, need not have a cause of action under the laws applicable where the workmen’s compensation act is not involved; and to hold that a petition under this act must set out a cause of action under the laws pertaining to negligence would defeat the very object of the act. The amendment absolved plaintiff from the force of the very laws invoked by the demurrer, and the demurrer to the petition as amended was properly overruled.

We will next consider the general grounds of the motion for a new trial. In his answer the defendant put the plaintiff to proof of the material allegations of his petition, set up that plaintiff was the superintendent and manager, and pleaded: (a) contributory negligence, (5) assumption of risk, and (c) accident and failure to exercise due care. Was the verdict for the defendant sustained by the evidence? We think so. Whether or not the defendant employed ten or more men within the purview of the compensation act was a question of fact for determination by the jury, and a careful examination of the record convinces us that the jury had the right to conclude that the requisite number of men were not so employed. If the jury did reach this conclusion, the defendant was let into all of his defenses, and the evidence was ample to sustain the verdict. It is perfectly apparent that if the jury had found that the requisite number of men were employed (the evidence being uncontradicted that the defendant failed to take out insurance), the defense would have been obliterated, and the only logical result would have been a verdict for plaintiff. The conclusion is therefore irresistible that the jury found that the defendant was not affected by the compensation act.

The verdict is sustained by the evidence; the record discloses no reversible error in the court’s ruling upon the evidence or in the charge.

Judgment on both bills of exceptions affirmed.

Broyles, O. J., and Bloodworth, J., concur.