While the burden of establishing the defense that the claimant's disability resulted from his own wilful misconduct is on the employer, it need be carried only by a preponderance of the evidence.
When this workmen's compensation case was tried before the single director, the latter made the following finding: "There is no doubt that the employee was greatly exceeding the speed limit of 60 m.p.h. for the State of Georgia and he was therefore guilty of violating a penal statute of this State. It has been held . . . that when the conduct of the employee was of a quasi-criminal nature such conduct was wilful misconduct, as in the instant case. Properly construed, the appellate courts have held first, that the violation of a penal statute by an employee is of itself wilful misconduct; and second, that the misconduct of the employee and his failure or refusal to discharge the duty imposed upon him by the traffic statute in question were both wilful. I therefore find as a matter of fact and conclude as a matter of law that the violation of a penal statute in the act of said employee in violating the speed limit of the State of Georgia and his failure or refusal to discharge the duty imposed upon him by the traffic statute in question were both wilful and he is therefore not entitled to compensation." On appeal to the full board the award denying compensation was reversed, and the board had this to say: "As to exceeding the speed limit (the defendants) failed to prove intentional or wilful misconduct. The law states a crime is an act, coupled with the intention to commit the act. This may be proved by circumstantial evidence, but it must be such as would exclude every other reasonable hypothesis save that of the guilt of the accused. A crime will not be implied but must be proved beyond a reasonable doubt. In this case there is nothing but doubt as to intention . . . the defendants have failed to carry the burden of proof, to prove that this injury was the result of wilful misconduct or in the commission of an unlawful act, to wit, speeding with the intention to do so."
The full board made an award in favor of the claimant which was affirmed on appeal to the Judge of the Superior Court of Baker County, and the latter judgment is here assigned as error.
Where it affirmatively appears from the award in a workmen's compensation proceeding that it is based upon an erroneous legal theory, the case should be remanded to the board for further findings. Wilson v. Swift & Co., 68 Ga. App. 701
(23 S. E. 2d 261). The award of the single director in this case appears to have been based on the erroneous legal theory that when a claimant in a workmen's compensation case is shown to have been injured while driving his automobile at a greater speed than that allowed by law he is as a matter of law and under all circumstances precluded from recovery. That this is erroneous, see Reid v. Raper, 86 Ga. App. 277 (1)
(71 S. E. 2d 735). On the other hand, the full board seems from the above quoted portion of the award to have been of the opinion that, since the question before it was whether the claimant was guilty of a crime, it was necessary for the employer to assume the burden of proving beyond a reasonable doubt that it was the intention of the claimant to commit the crime. This also is erroneous, for, under Code 38-105, "In all civil cases the preponderance of evidence is considered sufficient to produce mental conviction." Accordingly the case must be reversed and remanded to the full board for the sole purpose of making a finding of fact by a preponderance of the evidence and the entry of an award, without taking additional testimony. The claimant is entitled to recover unless the employer has convinced the full board by a preponderance of the evidence that the claimant's injuries and disability proximately resulted from his own wilful misconduct in the commission of the unlawful act of intentionally operating his automobile at a greatly accelerated rate of speed. Under Code 114-105 the burden of proof is on the employer to establish this defense. Under Code 38-105, supra, this burden need be carried only by a preponderance of the evidence. The judge of the superior court erred in affirming the award of the full board.
QUILLIAN, J., concurring specially. I concur in the majority opinion. However, since the case is to be reconsidered by the compensation board and decided on the evidence adduced on the former hearing before that body, and one of the contentions of the employer is that there was not sufficient competent evidence in the record to support the award, it is well to specially point out that the case is not reversed for that reason.