38 S.E.2d 675 | Ga. Ct. App. | 1946
1. Where an employer, who has never had as many as ten employees in his employ, elects to come within the terms of the Workmen's Compensation Act, and complies with the requirements of the law, a person subsequently employed will be presumed, under the terms of the Code, § 114-207, to have elected to come within the terms of the act, nothing to the contrary appearing.
2. "Where a servant is injured by a fellow servant or superior employee in a dispute, not provoked by the injured servant, arising over the conduct of the master's business, the injury may be the result of an accident, in so far as the injured employee is concerned."
3. (a) The Code, § 114-103, properly construed means that the rights of *19 the employee under the act shall be exclusive only as against the employer.
(b) An employee coming within the terms of the Workmen's Compensation Act is not precluded thereby from maintaining an action against a third party joint tort-feasor who inflicted the injuries complained of.
(c) The general manager of a company is not such an identical party with the company as to prevent an action against him individually for a wilful assault upon an employee where the assault grew out of a dispute over the conduct of the master's business and the master was under the Workmen's Compensation Act.
The court directed a verdict for the defendants upon the plea in *20
bar. The plaintiff filed his motion for a new trial, as amended, which was overruled, and he now excepts.
1. Under the facts of the stipulation, Chattooga Mercantile Company complied with the requirements of the law with regard to electing to be bound by the terms of the Workmen's Compensation Act to the letter. The plaintiff did not join in this election, as he was not then in the employ of the firm. The Code, § 114-207, provides: "When an employer and his employees elect to be bound by this law, the election shall continue until recalled by joint action of employer and employees, and shall be effective after notice is given to the Department of Industrial Relations [State Board of Workmen's Compensation], and shall include employees subsequently employed, unless they elect to reject the law." It is true that, where an employer has at no time had in his employ as many as ten employees, there is no presumption, as provided for in the Code, § 114-201, that either the employer or the employees have accepted the provisions of the Workmen's Compensation Act (Bussell v. Dannenberg Co.,
2. The plaintiff contends that under the allegations of the petition the assault made upon the plaintiff was not an accident within the meaning of the Workmen's Compensation Act, that therefore it was not covered by the terms of the act, and hence that his rights against Chattooga Mercantile Company were not abrogated by the act and he could bring an action at common law. None of the cases cited by the plaintiff support this contention, as we will point out later. These cases are: Kimbro v. Black White Cab Co.,
3. Ground 3 of the motion for new trial complains of the court's directing a verdict for the defendant Berry. The defendant's counsel endeavored both in his brief and on oral argument of the case before the court to refute this contention upon three grounds: First, that under the Code, § 114-103, the remedies under the Workmen's Compensation Act "shall exclude all other rights and remedies of such employee." Second, that there are cases in Georgia holding that the employee may proceed against a third person even after he has received compensation under an award of the State Board of Workmen's Compensation,provided, however, that said third person is not a joint tort-feasor. Third, that Berry cannot be said to be a third party, as he was the alter ego of the employer, and any right which the plaintiff might have would be because of the act of Berry as representative of the employer.
(a) In Hotel Equipment Co. v. Liddell,
(b) Counsel for the defendant states in his brief that "there are certain cases which hold that an employee may proceed against a third person even after he has received compensation under an award under the Workmen's Compensation Act, provided, however, that said third person is not a joint tort-feasor." We are not sure which cases counsel has in mind, as he cites none, but after some little research we have found the following decisions to contain this language which he quotes: Atlantic Ice CoalCorp. v. Wishard,
(c) The fact that the defendant Berry alleged in his plea in bar that he was the alter ego of Chattooga Mercantile Company does not preclude the plaintiff's bringing an action against Berry as an individual. The defendant Berry and Chattooga Mercantile Company are not identical parties. His duty not to harm the employee was both as representative of the company and as an individual.
For the foregoing reasons the court erred in refusing a new trial as to the plaintiff's action against the defendant Berry, but did not err in refusing a new trial as to Chattooga Mercantile Company.
Judgment affirmed in part, and reversed in part. Sutton.P.J., and Parker, J., concur.