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Action for damages; from Savannah City Court-- Judge MacDonell. March 21, 1951. (Application to Supreme Court for certiorari.)
A special employee injured while in the course of his employment and as a result thereof may recover compensation under the compensation act against his general employer or against his special employer or proceed against both, and if he recovers compensation from his general employer, he can not maintain an action against his special employer for damages at common law based upon the alleged negligence of that employer. Such special employee is not a third person against whom a common-law action will lie under the provisions of the Workmen's Compensation Act.
Walter N. Scott, herein after called the plaintiff, brought suit for damages under the common law in the City Court of Savannah on June 14, 1950, against the Savannah Electric & Power Company, hereinafter called the defendant, and alleged that on June 17, 1948, while employed by the Savannah Machine & Foundry Company, as a machinist, Bob Sheffield, his foreman and immediate superior with said foundry company, ordered and directed that the plaintiff go to the electric company to repair a turbine; that it was his duty to obey said order, which he did, and that while engaged in working for the electric company, pursuant to said order from Sheffield, as aforesaid, the plaintiff was injured when the current jumped to his body and caused him to fall. The plaintiff contended that the defendant electric company through its alter ego was negligent in ordering him to engage in the work of removing a water pipe line without informing him of the imminent danger and risk he ran from electric current jumping from a bus bar to his body while same was wet with perspiration; that the plaintiff's body was wet with perspiration when he was ordered to do said work; that said defendant was also negligent in failing to provide him with a safe place wherein to do said work and to protect him while doing so from the danger of such electricity jumping to his wet body; and that the defendant should have provided him with rubber clothes or a rubber sheet to protect him from said electric current.
On August 25, 1950, the plaintiff amended his petition by adding thereto count two in which he set up in addition to the matters set out in count one that when the water line pipes were cut a quantity of rusty water was spilled over and on the ladder on which the plaintiff was working and on the floor beneath same, so that such ladder and the floor did become conductors of electricity from uninsulated wires, and thus the danger to the plaintiff from electric shock was greatly enhanced, and that the wet floor and ladder were observed by one Whitney, who was present in the room as the alter ego of the defendant at the time this water got on the ladder and the floor and the plaintiff was injured, and that while Whitney was an experienced electrician and knew the danger of the floor and the ladder becoming wet and becoming purveyors or conductors of electric current, he did not give to the plaintiff (who was ignorant of such danger) any warning of his danger.
Thereafter, on October 13, 1950, the defendant demurred generally to the plaintiff's petition, as amended, on the ground that no cause of action is set out against it in count one, arid also that count two sets out no cause of action against it.
A further amendment to counts one and two of the petition was allowed and filed October 4, 1950, wherein it was set up that the plaintiff received compensation under the compensation act for about a year and a half in the aggregate sum of $1480, when the plaintiff entered into a stipulation with his employer, the Savannah Machine & Foundry Company and the insurance carrier, the U. S. Fidelity & Guaranty Company, by which he was paid a lump sum settlement of $3012.58. A copy of this award was appended to and made a part of the amendment. In the amendment the plaintiff averred that the Savannah Electric & Power Company and the Savannah Machine & Foundry Company are not joint tort-feasors in the infliction of the plaintiff's injury, but that the electric company, as a third party, is solely responsible to the plaintiff for the injury and damage sustained by him as alleged, and it is the plaintiff's right to sue and hold said electric company liable for the full damages sustained, and that the plaintiff is willing for the sum paid him under the compensation act, to wit, $4492.58, to be credited to the liability of said electric company.
Thereupon, the defendant on December 5, 1950, renewed its general demurrer to count one of the plaintiff's petition as amended, and to count two of said petition as amended, for the reason that same failed to set forth any cause of action against this defendant. On March 21, 1951, the trial court sustained said general demurrers to both counts and dismissed plaintiff's petition, as follows:
"The pleadings in this case show: First, that the plaintiff was a 'special employee' of the defendant, and that such 'special employee' is under the provisions of the act and the decision of our appellate courts, 'an employee as is defined by and covered under the terms of the Workmen's Compensation Act.' U. S. Fidelity and Guaranty Company v. Stapleton, 37 Ga. App 707; Cooper v. Dixie Construction Company, 45 Ga. App. 420; Liberty Lumber Company v. Silas, 49 Ga. App. 262; Liberty Mercantile Company v. Kinsey, 65 Ga. App. 433. Second, that the accident giving rise to the plaintiff's injuries arose out of and in the course of his special employment and the employment being subject to the terms of the Workmen's Compensation Act is exclusive of other rights and remedies. Code 114-103; 48 Ga. App. 252; Webb v. Tubize Chatillon Corp., 45 Ga. App. 744. Third, that according to the award of the Workmen's Compensation Board, the plaintiff has been compensated in accordance with the terms of the act itself.
"Code 114-403 and Albert v. Hudson, 49 Ga. App. 636 are not in point for the reason that in the case at bar, we have the privity and contractual relationship between the parties to create an employer and employee relationship, whereas the Code section applies to a third party, namely, a stranger to the relationship. Albert v. Hudson, supra, involved an injury to an employee of an employer by the act of a servant of the in dep endent contractor with the injured servant's employer.
"The case of Athens Railway and Electric Company v. Kinsey, 160 Ga. p. 1, is not in point. There was no special employeremployee relationship with the electric company in that case and it had no control of the work to be done by the manner, means, time and method of the performance of the work or any contract for such work with the general employer of the plaintiff. Echols v. Chattanooga Mercantile Company, 74 Ga. App. 18 is not applicable, the defendant corporation there having been held not liable for the separate individual wilful tort of its manager, the Workmen's Compensation Board having awarded the plaintiff for his injury upon the theory of 'accident within the course of his employment'. For the above reasons, the general demurrer is hereby sustained and the petition dismissed."
To this judgment the plaintiff excepts to this court.
The petition of the plaintiff, as amended, was dismissed by the trial court on general demurrer because the plaintiff's injury was shown to have arisen out of and in the course of his general employment with the Savannah Machine & Foundry Company, and while he was also a special employee of the Savannah Electric & Power Company, within the meaning of the Workmen's Compensation Act, so as to entitle him to compensation from the latter, the plaintiff, while employed by the Savannah Machine & Foundry Company having been directed by it to do certain work for the Savannah Electric & Power Company and the injury having occurred while he was engaged in such duties as directed by his employer the Savannah Machine & Foundry Company. The trial judge properly ruled that the plaintiff was a "special employee" of the electric company, hereinafter referred to as the defendant.
An "employee" shall include "every person, including a minor, engaged in the service of another under any contract of hire or apprenticeship, written or implied." Under the general rule, it is well settled that the fact that an employee is the general servant of one employer, does not prevent him from becoming the particular servant of another under special circumstances. See U. S. Fidelity &c. Co. v. Corbett, 31 Ga. App. 7 (119 S. E. 921). Also see Code 114-419. While the plaintiff was loaned to the defendant he was as to that company in doing the work, subject to their control, and occupied the position of a special employee, and as such he could recover for an accidental injury sustained by him arising out of and during the course of his employment only under the compensation law, and he could recover from either employer or from both, as the facts might justify, and in this connection see generally U. S. Fidelity &c. Co. v. Stapleton, 37 Ga. App. 707 (141 S. E. 506). The plaintiff, having elected to proceed against his general employer, the Savannah Machine & Foundry Company, and having recovered compensation from that employer, is now precluded from bringing any common-law action against his special employer, the defendant, based upon any alleged negligence of that employer. The injury sustained was one arising out of and during the course of plaintiff's employment and as a result thereof and is therefore compensable. Where the injury sustained is one compensable under the compensation act and both the employer and employee are subject thereto and have not rejected its provisions, a common-law suit on account of such injury is not maintainable by the employee against his employer, either general or special. Blue Bell &c. Co. v. Baird, 61 Ga. App. 298 (6 S. E. 2d, 83). This was an accidental injury arising out of and during the course of the plaintiff's employment, and his only recourse was to proceed under the compensation act, which he has done. See Blue Bell &c. Co. v. Baird, 64 Ga. App. 347 (13 S. E. 2d, 105).
The plaintiff having received an award for the injury sustained, is not entitled to proceed at common law against his special employer. The trial judge correctly sustained the general demurrer to the plaintiff's petition, as amended, and dismissed the same.
The trial judge, in a well written opinion, accompanying his order and judgment, which is quoted by this court, correctly applied the law to the pleadings.
If the plaintiff is entitled to further or additional compensation for his injury or if there has been a change in his condition, he must proceed under the act in a proper manner and not by a common action at law for damages.
A special master employing a special servant who is a general servant of a general master, as here, is not such a third person against whom a common-law action will lie under the provisions of the Workmen's Compensation Law, as provided in Code 114-403.
The court did not err in sustaining the general demurrer and dismissing the plaintiff's petition, as amended.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.
Bouhan, Lawrence, Williams & Levy, for defendant.
Oliver, Oliver & Davis, for plaintiff.
Saturday May 23 05:35 EDT

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