Argonaut Insurance Co. v. Almon

Court of Appeals of Georgia

Argonaut Insurance Co. v. Almon

172 S.E.2d 624, 120 Ga. App. 869, 1969 Ga. App. LEXIS 946

CourtCourt of Appeals of Georgia

DecidedSeptember 25, 1969

Docket44734

StatusPublished

Cited by8 cases

This text of 172 S.E.2d 624 (Argonaut Insurance Co. v. Almon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Argonaut Insurance Co. v. Almon, 172 S.E.2d 624, 120 Ga. App. 869, 1969 Ga. App. LEXIS 946 (Ga. Ct. App. 1969).

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Opinions

Bell, Chief Judge.

This is an appeal from an award in favor of claimants by a single director of the Board of Workmen’s Compensation against the employer and his insurance carrier which was adopted by the full board and affirmed by the Superior Court of Troup County.

Claimants are the minor children of Jerry Almon. On September 19, 1967, Almon was killed in a grade crossing collision with a train while in the employ of the defendant employer. At the time of the fatal accident, the deceased was driving a truck, heavily loaded with sand, in an easterly direction. The train was traveling in a northerly direction. A regular stop sign was in place near the crossing facing the deceased’s direction of travel. There was no evidence that the decedent’s view of the crossing was obstructed. A State Trooper who investigated the accident found eighty-six feet of skid marks, made by the truck, which curved to the left. According to the testimony of the train crew, Almon did not stop before entering the crossing. The single director in his findings of fact stated, among other things, that “There is no evidence that the deceased was guilty of any wilful misconduct or violation of any State statutes as there was conflict in the evidence between the trainmen and the State Trooper as to whether the deceased applied the brakes to said truck and there is no evidence as to whether or not there was mechanical failure to said truck prior to the accident.”

Defendants urge that the evidence demands a finding that the deceased employee’s death was caused by his wilful misconduct as his failure to stop at the crossing constituted violations of Code Ann. §§ 68-1661 (c) and 68-1662, both of which are misdemeanors, and that accordingly, Code § 114-105 precludes recovery. Defendants rely upon the holding of the Supreme Court in Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (150 SE 208) and Hall v. Kendall, 81 Ga. App. 592 (59 SE2d 421). In Hall, the court merely held that the uncontradicted evidence demanded the finding of fact that the claimant’s conduct was wilful and a flagrant and intentional violation of a traffic statute. The Aetna case also involved the question as to the manner in which a statute pertaining to speed when approaching a railroad crossing had been vio[870]*870lated. Aetna plainly. held that the statutory bar requires conduct of a criminal or quasi-criminal nature; and that negligent conduct, even though grossly so, does not equate with the former. The reversal in Aetna was based solely on the Supreme Court’s honoring the fact-finding board’s determination that the claimant in that case was also guilty of wilful misconduct. Here, under evidence authorizing it to do so, the board found the conduct to be negligent only; and found it not to be criminal or quasi-criminal. It necessarily follows then, that we too must honor the board’s finding as Aetna and hosts of other precedents demand affirmance of this award. See, inter alia, Reid v. Raper, 86 Ga. App. 277 (71 SE2d 735); Beck v. Brower, 101 Ga. App. 227, 228 (113 SE2d 220).

Argued September 3, 1969 Decided September 25, 1969 Rehearing denied December 19, 1969 Greene, Buckley, DeRieux, Moore & Jones, Thomas B. Branch, III, for appellants. C. C. Perkins, Howe & Murphy, Harold L. Murphy, for appellees.

Judgment affirmed.

Jordan, P. J., Hall, P. J., Deen, Quillian, Whitman and Evans, JJ., concur. Eberhardt and Parnell, dissent.

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Bell, Chief Judge.

This is an appeal from an award in favor of claimants by a single director of the Board of Workmen’s Compensation against the employer and his insurance carrier which was adopted by the full board and affirmed by the Superior Court of Troup County.

Claimants are the minor children of Jerry Almon. On September 19, 1967, Almon was killed in a grade crossing collision with a train while in the employ of the defendant employer. At the time of the fatal accident, the deceased was driving a truck, heavily loaded with sand, in an easterly direction. The train was traveling in a northerly direction. A regular stop sign was in place near the crossing facing the deceased’s direction of travel. There was no evidence that the decedent’s view of the crossing was obstructed. A State Trooper who investigated the accident found eighty-six feet of skid marks, made by the truck, which curved to the left. According to the testimony of the train crew, Almon did not stop before entering the crossing. The single director in his findings of fact stated, among other things, that “There is no evidence that the deceased was guilty of any wilful misconduct or violation of any State statutes as there was conflict in the evidence between the trainmen and the State Trooper as to whether the deceased applied the brakes to said truck and there is no evidence as to whether or not there was mechanical failure to said truck prior to the accident.”

Defendants urge that the evidence demands a finding that the deceased employee’s death was caused by his wilful misconduct as his failure to stop at the crossing constituted violations of Code Ann. §§ 68-1661 (c) and 68-1662, both of which are misdemeanors, and that accordingly, Code § 114-105 precludes recovery. Defendants rely upon the holding of the Supreme Court in Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (150 SE 208) and Hall v. Kendall, 81 Ga. App. 592 (59 SE2d 421). In Hall, the court merely held that the uncontradicted evidence demanded the finding of fact that the claimant’s conduct was wilful and a flagrant and intentional violation of a traffic statute. The Aetna case also involved the question as to the manner in which a statute pertaining to speed when approaching a railroad crossing had been vio[870]*870lated. Aetna plainly. held that the statutory bar requires conduct of a criminal or quasi-criminal nature; and that negligent conduct, even though grossly so, does not equate with the former. The reversal in Aetna was based solely on the Supreme Court’s honoring the fact-finding board’s determination that the claimant in that case was also guilty of wilful misconduct. Here, under evidence authorizing it to do so, the board found the conduct to be negligent only; and found it not to be criminal or quasi-criminal. It necessarily follows then, that we too must honor the board’s finding as Aetna and hosts of other precedents demand affirmance of this award. See, inter alia, Reid v. Raper, 86 Ga. App. 277 (71 SE2d 735); Beck v. Brower, 101 Ga. App. 227, 228 (113 SE2d 220).

Argued September 3, 1969 Decided September 25, 1969 Rehearing denied December 19, 1969 Greene, Buckley, DeRieux, Moore & Jones, Thomas B. Branch, III, for appellants. C. C. Perkins, Howe & Murphy, Harold L. Murphy, for appellees.

Judgment affirmed.

Jordan, P. J., Hall, P. J., Deen, Quillian, Whitman and Evans, JJ., concur. Eberhardt and Parnell, dissent.

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172 S.E.2d 624, 120 Ga. App. 869, 1969 Ga. App. LEXIS 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/argonaut-insurance-co-v-almon-gactapp-1969.

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