lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
FLEMING v. ROSS L. BROWN GRANITE COMPANY, INC.
22228.
Cancellation, etc. Elbert Superior Court. Before Judge Skelton.
HEAD, Presiding Justice.
The trial judge did not err in sustaining the defendants' general demurrers.
Robert Louis Fleming filed his petition against Ross L. Brown Granite Company, Inc., the Southern General Insurance Company, and William A. Kelly. the petition alleged: On February 15, 1957, while in the employ of Ross L. Brown Granite Company, Inc., the petitioner received an injury to his left eye, in that some foreign object such as a piece of rock or steel flew into it, which injury caused him much physical pain and suffering. The petitioner became blind in his left eye on or about February 17, 1957. "On Sunday, February 24, 1957, the petitioner's right eye suddenly went out, like a light. That is to say, that on February 24, 1957, the petitioner's right eye went out suddenly, and quickly, as if someone had turned off an electric light bulb. Thus, the loss of vision suffered by your petitioner in his right eye, on February 24, 1957, was a sudden happening or event." The petitioner could see out of his right eye before February 24, 1957. On February 28, 1957, a standard form of agreement as to compensation was submitted to the State Board of Workmen's Compensation, a copy of the agreement being attached to the petition and marked "Exhibit A." On some date after February 28, 1957, the defendant employer or the defendant insurance carrier submitted another document, copy of which is attached and marked "Exhibit B". "The State Board of Workmen's Compensation withheld its approval of the proffered documents, set out above, because it knew, as all of the defendants in this case knew, that after February 24, 1957, the petitioner was totally and hopelessly blind in both eyes." To disassociate the loss of vision on the part of the petitioner in his right eye from the compensable accident of February 15, 1957, William A. Kelly prepared and transmitted to the State Board of Workmen's Compensation a certain document or writing, copy of which is attached and marked "Exhibit C". This document is dated August 15, 1957. On this date the defendant Kelly was not an officer or representative of the defendant insurance company, but was a rank stranger to the contract, and his activities "constituted sheer meddling on his part with a matter which did not concern him, . . ." The document identified as "Exhibit C" was "a sheer fraud, false, a forgery, and a flim-flam . . ." The third paragraph thereof opens with a statement to the effect that the trouble with the petitioner's right eye occurred in 1937 while he was working on a farm in Elbert County. As a matter of fact the petitioner was not working on a farm in 1937, did not have any eye trouble in 1937, and could see out of his right eye in 1937. The petitioner did not make any of the statements contained in "Exhibit C" to the defendant Kelly. The petitioner was defrauded of $7,144 because, instead of being paid the amount of $10,000, to which he was entitled, his compensation was reduced to $2,856. "The petitioner did not know anything about the writing attached hereto and identified as 'Exhibit C' until the month of December, 1962." In so far as the petitioner knows, neither of the other defendants had anything to do with the preparation of the writing attached and marked "Exhibit C", it being prepared and transmitted to the State Board of Workmen's Compensation by the defendant Kelly. The defendant Kelly has injured and damaged the petitioner in the sum of $7,144 actual damages, for which the petitioner sues, together with interest, and in view of the facts alleged, the defendant Kelly should be forced to respond to the petitioner in punitive damages in the amount of $50,000. The defendant Kelly has acted in bad faith and has put the petitioner to unnecessary expense and trouble, and should be required to pay reasonable counsel fees of the petitioner. More than two years having elapsed since the Southern General Insurance Company transmitted to the State Board of Workmen's Compensation the writing identified as "Exhibit D", the board is without power to proceed, and the petitioner is relegated to a suit in the superior court to cancel and set aside the approval of the award in this case of the State Board of Workmen's Compensation.
The prayers were: for process; that the approval of the State Board of Workmen's Compensation of the award wherein the petitioner was compensated for the loss of his left eye only be set aside and adjudicated void, due to the fraud practiced on the board in the petitioner's case; that the petitioner recover of the defendant Kelly a general money verdict and judgment for the sums sued for; and for other relief.
The joint general demurrers of the defendants to the petition were sustained and the petition dismissed. The exception is to this judgment.
A pleader is required to plainly, fully, and distinctly set forth his cause of action. Code 81-101. "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." Krueger v. MacDougald, 148 Ga. 429 (96 SE 867); Bowman v. Chapman, 179 Ga. 49 (175 SE 241); County Bd. of Educ. of Wilcox County v. Board of Commissioners &c. of Wilcox County, 201 Ga. 815, 819 (41 SE2d 398); Brewton v. McLeod, 216 Ga. 686, 695 (119 SE2d 105).
The petition in the present case fails to allege any connection between the injury on February 15, 1957, to the petitioner's left eye, resulting in the loss of sight in this eye on February 17, 1957, and the loss of vision in his right eye on February 24, 1957. It is alleged only that "petitioner's right eye went out suddenly, and quickly, as if some one had turned off an electric light bulb," and that this loss of vision "was a sudden happening or event." There being no averment in the petition of any connection between the injury to the petitioner's left eye and the loss of vision in his right eye, the petition fails to show any right of recovery in excess of that awarded and paid.
"Exhibit A" attached to the petition is an agreement for the payment of compensation by the employer and its insurance carrier with the petitioner, "until terminated in accordance with the provisions of the Workmen's Compensation Law." This agreement was approved by the State Board of Workmen's Compensation on March 12, 1957. "Exhibit B" is an agreement between the parties for the payment to the petitioner of compensation for "100% loss of use of left eye" for a period of 119 weeks. It is apparently this agreement that the petitioner seeks to have "set aside and adjudicated void due to the fraud practiced on the Board." "Exhibit B" appears to have been executed by the petitioner and to have been witnessed by two witnesses. It is nowhere alleged in the petition that the petitioner was not fully advised that the agreement for the payment of compensation was for the injury to his left eye only and that payment would be made for 119 weeks. As to any lack of knowledge on the petitioner's part, it is alleged only that he "did not know anything about the writing attached hereto and identified as 'Exhibit C' until the month of December, 1962." An agreement providing for compensation under the Workmen's Compensation Act for a specific injury, in the absence of fraud, accident, or mistake, is binding on the parties. Liberty Mut. Ins. Co. v. Morgan, 199 Ga. 179, 181 (33 SE2d 336). Since no lack of knowledge is alleged by the petitioner as to the agreement for the payment of compensation for 119 weeks, nor that any fraud was practiced upon him to procure his approval of this agreement, he fails to show that he is entitled to any relief from his voluntary act.
Attached to the petition as "Exhibit D" is a compensation settlement receipt (purportedly executed by the petitioner) wherein he acknowledged receipt of $3,096 "in final settlement and satisfaction of all claims for compensation" by reason of "injuries suffered by Robert Fleming on or about the 15th day of February 1957, while in the employ of Ross L. Brown Granite Company." As to this final receipt, the petitioner does not allege fraud, accident, or mistake, or that this final receipt is for any reason otherwise invalid, and until it is set aside, the petitioner is bound by his final receipt. Cardin v. Riegel Textile Corp., 217 Ga. 797 (125 SE2d 62).
Counsel for the defendants have insisted that the petitioner did not exercise any degree of diligence to discover the alleged fraudulent document attached as "Exhibit C" and that his action is barred by the statute of limitation. If a plaintiff has been debarred or deterred in bringing his action by the fraud of the defendant, the statute of limitation will run only from the discovery of the fraud. Code 3-807. "Mere ignorance of fraud which might have been discovered in due time by ordinary diligence will not suspend the statute." Brinsfield v. Robbins, 183 Ga. 258 (188 SE 7). The petition alleges only that the petitioner "did not know" of the alleged fraudulent document ("Exhibit C").
The trial judge did not err in sustaining the defendants' general demurrers.
Judgment affirmed. All the Justices concur.
Smith, Swift, Currie, McGhee & Hancock, Heard & Leverett, contra.
Joseph B. McGinty, for plaintiff in error.
ARGUED OCTOBER 14, 1963 -- DECIDED NOVEMBER 12, 1963.
Friday May 22 22:14 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com