*1 appellants. Allen, Jr., Smith, Jr., T. M. Hunter S. for appellees. Desiderio, Desiderio, R. for Bell & Charles Judge, specially. concurring Evans, opinion. majority I concur all that is set forth in the go step IBut and call fact that one further attention to the Supreme it, Court when case was before specifically held as a rule follows: "The failure аttach nisi to a motion for trial does demand a dismissal new not judge of the motion. The trial his discretion dismiss it continue the until the motion matter perfected. granted In this case he did but neither reflects, motion new trial. So far for as the record hearing on the for motion new trial has never been by ordered the trial court.” judge granting
So here we have a of the trial court hearing new trial in a case been which there has no pursuant motion new trial to a rule nisi. That means for losing party right process, the that he denied the due given hearing of a case was notice (new contentions). granted against lost trial was 50524. LIBERTY MUTUAL INSURANCE COMPANY
et al. BRAY. Judge. Stolz, deputy In this case, workmen’s compensation. appeal full director and board denied On Superior Stephens County, Court of the case was resulting appeal. reversed, in this (cid:127) following finding director made fact: "a. That 1972, on November the claimant was working employer spray painter average for the aas at an weekly wage proceеding b. That $229.63. while across a public highway at m., about 12:30 on a. November get premises in order to from the area on the of his employer normally where he worked to an area across the employer provided parking
public highway lot to a parked, a vehicle he was struck vehicle was where his proceeding sоuthwesterly westerly at a direction in a proper speed legal lane, that as a and in the rate of disabling totally impact he sustained result of *2 intentionally legs injuries c. That he and his head. to both crossing highway point full the with of selected this knowledge there left or to the east that some 300 feet to his controls, light pedestrian crossing d. with traffic was a That in point public highway attempting the at cross the yield intentionally and he failed to observe selected right-of-way him. That struck e. to the vehicle which the the having accident, while the occurred
above-described parked on the vehicle claimant en route to his was arising employer, premises out an accident proximately employment, caused and in the course of his duty required perform by by a the failure of the claimant to punishable a statute, as the violation of which supports evidence misdemeanor.” The uncontroverted (d). (c) particularly findings findings fact, and these (a) (Ga. § 1953, L. Nov. Former Code Ann. 68-1657 543) "Every provided: pp. pp. 592; 1967, Sess., pedestrian crossing any point roadway other than at a unmarked an within a marked crosswalk or within yield right-of-way shall the crosswalk at an intersection upon roadway: Provided, however, that to all vehicles this section shall not the
apply roadways in areas where nor intersections at which there are no crosswalks roadway, pedestrians may such cross the but that on roadway roadways pedestrians crossing in such areas roadway.” equal rights shall have with vehicles on the superior erroneously The held that this Code apply unincorporated in the areas of a section does county specific evidence to show that the unless there is county Highway an State Board or the had established pedestrians only ordinance; otherwise, or could cross plant highway light. at the intersection This view § completely ignores provisions Ann. 68-1610 of Code (c) (Ga. 569), pp. 556, "The dis- Sess., L. Nov. to wit: disobeyance regard official or the instructions of signal, placed traffic-control device or in accordance provisions vehicle, law, shall of this the driver of prima law, be deemed as facie evidence of a violation of requiring proof authority without what of who sign such or device has been erected.” fact the claimant and not injury, the driver aof vehicle at the time of his not in does applicability (c), supra, § diminish the 68-1610 (light) to in reference to the traffic control device referred finding evidence of fact. director’s (a), provision of former Code Ann. 68-1657 supra, apply roadways that, "this section shall not areas where there are no at crosswalks nor intersections pedestriаns may way which cross the . . .” no general provisions out takes under (a), supra. of 68-1657 The evidence showed that there pedestrian crossing light was a with traffic controls approximately place 300 feet from the where claimant "jaywalked” highway. across injury
"No shall be allowed for an employee’s including death misconduсt, due to the intentionally attempt injury, growing out self-inflicted of his *3 injure another, or due to or intoxication wilful perform safety appliance or failure refusal to use a a or duty required by statute, or the of wilful breach rule regulation adopted employer approved or by the and Compensation, the State Board of and Workmen’s brought knowledge employee prior to the to the proof upon accident. burden of be him shall who exemption an claims or forfeiture under section.” Code 114-105. improper wrong
"Misconduct is or conduct. When improper wrong intentionally de- or is conduct or liberately done, it It true becomes wilful misconduct. is something that wilful misconduct means different from negligence. and more than Wilful misconduct an employee, preventing recovery compensation, of involves an intentional, action, deliberate reckless a disregard something consequences, of another, either to himself or greater injury,
less than self infliction of but gross negligence than or wanton carelessness. Wilful negligence, misconduct is much than more mere or even gross negligence. qua- than It conduct of a involves doing something si-criminal nature, the intentional of likely to result that it is knowledge with the either of disregard and reckless or with a wanton injury, serious misconduct Wilful consequences. [Cits.] probable its defi violations of intentional includes all conscious or is conduct, which rules of obedience nite law or inadvertent, discretionary, distinguished as The con unconscious, violations. involuntary [Cit.] or statute, penal intentional violation of a scious and is the employee, wilful misconduct of which constitutes an act which violates doing the or intentional of conscious it. of statute, thinking breaking he be not though the bar not the case at is The test of misconduct the [Cit.] intent specific the of a of an act for and with doing purpose doing of the but the wilful and conscious violating statute To of require the is in of the statute. of act violation which the of thought that employer employee to show away take to its breach would statute and deliberated as unduly violation, and would defense of wilful limit or definition of wilful misconduct. scope [Cits.] involves above that wilful misconduct We have shown so, This then being conduct a nature. quasi-criminal of If misconduct. conduct ever criminal conduct wilful if misconduсt, becomes and misconduct ever becomes misconduct, intentionally it an employee is when or So injury commits crime which results death. crime is we are the commission opinion statute; our wilful misconduct within meaning make should not be employer required death, for his due to his violation injury, statute, a criminal being proximate such violation supplied.) cause of Aetna injury (Emphasis death.” 208) 333, 342 Ins. Co. v. SE cits. rule, in a applicable
The Carroll made supra, was *4 Co. by case this court in Indem. Ins. "jaywalking” Pacific (130 Eberhardt, 136), v. in an 107 391 SE2d App. Ga. (now Justice) Jordan, by opinion by Judge concurred (now Justice) Judge Chief Nichols and Presiding Judge (later Justice) Erankum. is to the claimant adversely case controlled authorities. foregoing
the. Stephens Court of judgment Superior
591 reversed, is County with direction that the award of the Board of Compensation State Workmen’s be made the of that judgment court. Bell, J., reversed with direction. C.
Judgment Pannelly J., Deen, J., Marshall, J., P. P. concur. Quillian, Evans, Webb, JJ., Clark and dissent. April
Argued 30, 9, 1975 Decided 1975 October Rehearing 18, denied 1975. November Erwin, McLeod, Burch, Gibson & E. Davison Epting, for appellants. M. Ray,
Robert
for appelleе.
Judge, dissenting.
Quillian,
We are confronted in this case with the issue as to
whether
mere traffic violation
constitutes wilful
misconduct within
purview
of Code
114-105.
Although several cases have addressed themselves to this
broad point, some variance obtains. Compare Aetna Life
(150
Carroll,
208);
Ins. Co. v.
"Aetna quasi-criminal nature; that and a conduct of criminal or though grossly negligent so, does not conduct, evеn equate in Aetna was based the former. reversal fact-finding honoring Supreme solely the on the Court’s in that case was the claimant determination that board’s though guilty Thus, it even misconduct.” also of wilful Argonaut argued that the Co. case the Ins. was statutory provisions imposing 2 had violated upheld punishment, the board’s misdemeanor only. finding negligent that the conduct was claimant’s supra, Aetna Ins. v. 169 Ga. Co. "intentional, equates the misconduct with term wilful consequences disregard of action with reckless deliberate greater gross negligence wanton carelessness.” ... than my did not conduct this case In view the claimant’s consequences.” disregard to of amount "reckless dissеnting. Judge, Evans, Bray leaving 3, 1972, F. the L. was On November necessary premises employer, it a of and was cross his public parking highway in lot of his order to reach the Bray’s parked. employer a He struck where car was employee; driven a fellow and suffered vehicle impact. disabling injuries as a result of the Bray compensation against applied for workmen’s Liberty employer insurer, its Insurance and Mutual Company. deputy recognized director the well established employee time that an is allowed a reasonable for
rule ingress place egress work; that his and from his of and usually period employment includes such reasonable of ingress plаce egress and while time for ofwork (Federal employer’s premises Co. v. is on Ins. he 214); App. Coram, 95 625 U. S. Cas. Co. Ga. SE2d 378)), Russell, that an is one which accident of the nature here described employment. of arise out the course Despite this, director held (a) pro- Ann. 68-1656 which violated Code every pedestrian crossing at vides that point crosswalk, within an other than within a marked yield intersection, unmarked crosswalk at an right way shall roadway. to the vehicles on the He further per- claimant, instance, held that in the failing yield right formance of an act in unlawful way ato vehicle in that he Code Ann. 68-1657 violated (a); preponderance and that here evidence finding injuries warranted proximately the claimant’s were *6 § caused his violation of Code Ann. (a). 68-1657 compen- The director denied workmen’s full sation. The board affirmed. appealed superior case
The was to the court and that judicial geographical court took that notice location of place thе unincorporated of the in accident this was in a rural and case Stephens County,
area of that erroneously board determined that (a), violating claimant was Code Ann. 68-1657 because apply same did not at this location. incorporated city
Claimant was outside the and there was no evidence that he failed to use an available point. crosswalk at that The also found the mere of a existence traffic control device at some distance down (300 50), p. bring feet, road T. would not this case purview (a); within the Ann. of Code 68-1657 and that as highway exception statute, falls within the to the penal "equal claimant did not violate a statute had rights” any thereupon. vehicle The court reversed finding guilty the board’s that the claimant was of wil- compensation. ful misconduct and its denial of insurer/employer appeal. majority "jaywalking” hold the was claimant on guilty violation law and therefore deny
wilful misconduct as to him so workmen’s com- pensation. I dissent.
1. Wilful misconduct includes all conscious or intentional violations of definite or conduct laws rules of distinguished inadvertence, as or unconscious involuntary v. 169 violations. Aetna Ins. Co. 208). (150 (Id) Ga. 333 SE
2. The insurer contends that it is that where shown ("jaywalking”) the in violation of law crossing public guilty road that he is 594 (59 Kendall, 592 SE2d 81 Ga. App. Hall v.
misconduct. 269, 270 Co., App. 110 Ga. American Ins. 421); v. Young Eberhardt, (5) (138 v. 385); Indem. Ins. Cо. SE2d Pacific 136). (130 I agree cannot 391 SE2d App. 107 Ga. (misdemeanor). crime any claimant was guilty of the state take notice judicial 3. Our courts location, as state, as well and their highways limits, and city surveys, lands in the state locations of State, 337, 338 v. 212 Ga. Jordan county lines. See State, 46 340; v. Ga. 528), Moye at page SE2d and citations (2) (169 59); Morgan, v. 727 SE Guess App. (5) (26 Stаte, 424); 96 Williams Ga. SE2d 747). judicial take Clearly, the court could manufacturing location of defendant’s
notice that east of Toccoa to be 3 to 3 miles plant, shown 1/2 in an U. S. County Highway on Stephens County. area of unincorporated Stephens that the State evidence offered to show There was no (Stephens County) local Highway authority Board ordinance, otherwise, had established plant at the pedestrians only highway could cross 68-1610, 68-1611, §§ Ann. light. intersection See Code *7 68-1614, 68-1655, 68-1656, And as to 68-1613, 68-1657. marked and unmarked at the traffic controlled crosswalk (a) Code Ann. 68-1657 states: plant, intersection to any point at other "Every pedestrian crossing roadway than a marked оr within an unmarked within crosswalk at an yield right-of-way crosswalk intersection shall Provided, however, that upon roadway: to all vehicles in roadways this section shall not to areas where apply there are no crosswalks nor at which intersections that on pedestrians roadway, cross the but such roadway roadways pedеstrians crossing such areas roadway.” shall have with vehicles on equal rights Almon, Ins. Co. v. Compare Argonaut 624). 4. majority It therefore is a for the gross injustice here to hold that the claimant of wilful guilty (i.e., suicide?), misconduct to commit trying stepping to parking prior into the to cross to the lot I the view of the departing job fully site. agree I trial affirm judgе, judgment reversing would Compensation. the Board of Workmen’s majority places 5. The at several refers to a "pedestrian crossing,” important point but we feel it to out "pedestrian crossing” that the the character usually "pedestrian crossing.” known as only vicinity crossing in was one where a pedestrian punch light could a buttоn and cause the to change, parking at lot, the entrance to and this pseudo-crossing yards) was 300 feet from where the (T. 51). injured pp. 34, claimant undertook to cross. This municipality, was not in a and we not know of do law foregoing "pedestrian crossing,” which describes the as a obligated or one which a to use while part cоunty, yards rural at a distance of 100 penalty being guilty therefrom on law. of a violation of the Judges I am authorized to state that Quillian, Clark and Webb concur in this dissent.
50882. HANOVER INSURANCE COMPANY al. et
ROLLINS. Presiding Judge. Pannell, Compensation The State Board of Workmen’s denied appellee superior claimant. The directing remanded the board, case to the that it make findings apply various clarifications of fact and "appropriate Georgia Appellant alleges law” thereto. remanding failing error in the court’s the case and affirm the award of the State Board of Workmen’s Compensation. The evidence showed the claimant received injuries
serious in an automobile collision. The just begun pass had a farm tractor on the crest of a hill attempted when the tractor to make a left hand turn. *8 Claimant’s car collided with the left front wheels of the gave tractor. Claimant testified that the tractor driver no signal. investigating turn officer testified that any signal claimant could not have seen in that visibility impaired crest; he was on a hill because