Jones v. Georgia Casualty Co., 30 Ga. App. 207

Jones v. Georgia Casualty Co.

30 Ga. App. 207 | Ga. Ct. App. | 1923

Jenkins, P. J.

The question involved is not altogether free free from doubt and uncertaint]’’, since the language of section 32 is not free from ambiguity. The provisions of the statute are remedial, and it is expressly designed to prevent industrial accidents, and to provide rights and remedies both to employers and employees under the contingencies of modern industrial conditions. Thus, in carrying out the purpose and intent of the statute, even though it be in derogation of the common law, it will be reasonably construed so as to prevent, if possible, a miscarriage of the purposes and benefits for which it was designed and enacted. See, in this connection, 28 R. C. L. 740, 755, 758 (§ 52); L. R. A. 1916A, 215; L. R. A. 1917D, 89. Since the statute expressly purports to provide restricted compensation for total disability (§ 30), and since it expressly provides for the payment of additional compensation for subsequent partial disability occasioned by the same injury (§ 31), it would be altogether irrational to attempt to give effect to what might seem to be the ‘literal meaning of section 32. This section provides that “in cases included by the following schedule, the incapacity in each case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein, and shall be in lieu of all other compensation.” Taking the language as it stands, section 32 might seem to afford the sole and exclusive remedy, and provide the sole and exclusive compensation, for all disabilities, both total and partial, caused by injuries to the particular members therein dealt with. The order passed by the superior court judge indicates that he does not. so interpret it, but in his opinion the employee or the commission is privileged to disregard the provisions of.section 32, even;when *211the disability is occasioned by permanent injury to one of the bodily members embraced in the schedule in that section, and to proceed for total disability under section 30 and for additional partial disability under section 31. The statute certainly can not mean that an employee is limited to the rights given him under section 32 for all compensation occasioned by an injury to the members therein enumerated. To illustrate such an interpretation of the rule: if a person were to suffer an injury to his thumb, and the wound, through infection or other cause, rendered him totally and continuously disabled for a period of fifty, a hundred, or even three hundred and fifty weeks, but upon final recovery he should retain two thirds of the use of his thumb, he could only be entitled to 50 per cent of his weekly wages for 10 weeks. The section manifestly had no such intent. It deals exclusively with partial disabilities; not only so, but its scope is limited to partial disabilities resulting from injuries of a certain, definite, and particularly described character, to wit, injuries to particular members or organs of the body. Section 30 provides for temporary and permanent total disability. Section 31 provides for temporary or permanent partial disability on account of any and all injuries to the person " except as otherwise provided ” in section 32. By its express terms section 31 omits to provide for' partial disabilities occasioned by permanent injuries to the particular members scheduled by the succeeding section. Finally, section 32 provides for permanent partial disability on account of the particular injuries expressly excepted from the operation of the preceding section. Section 32 is the only section which provides, and it provides exclusively, for partial' disabilities occasioned by permanent injuries of the particular character therein set forth; neither this section nor the preceding section in any wise purports to deal with the subject of total disabilities. These are dealt with by section 30 exclusively. It thus appears that, construing the three sections together, upon an injury being received entailing total disability, the employee is entitled to receive compensation therefor under the provisions of section 30; that where such total disability is succeeded by partial disability he is entitled to recover additional compensation therefor either under section 31 or section 32,— under section 31 on account of all injuries except of the particular kind and character scheduled *212in section 32, but exclusively under section 32 if the partial disability is permanent and is occasioned by an injury of the character therein described.

If such additional compensation for permanent partial disability is recovered under section 32 for the “ loss ” or " partial loss ” of a member therein designated, no additional compensation can be had for partial disability under section 31, but the remedy prescribed therefor by section 32 is exclusive. This would seem to be the meaning of the concluding phrase in the first sentence of section 32, rather than a construction which would mean .that, although an employee is limited to this section for the recovery of partial disabilities whenever the permanent injury is to a designated member, yet because he recovers this much of the claim to which, by the purport of the act, he is entitled, he must thereby waive and renpunce the other and perhaps the greater portion of his claim for previous total disability. Especially would the construction we have given seem to be the correct one when it is considered that section 32 is dealing not at all with the matter of total disabilities, but exclusively with particular kinds of permanent partial disabilities as specifically excepted from the operation of section 31. Just as section 31 specifically excepts the subject-matter of section 32, so section 32, though in ambiguous language, seeks to specifically except from a dual operation the subject-matter dealt with in section 31. In our opinion the award of the commission should have been sustained.

Judgment reversed.

Stephens and Belli JJ., concur.