Liberty Mutual Insurance Co. v. Crist

71 S.E.2d 910, 86 Ga. App. 584, 1952 Ga. App. LEXIS 1013

• Court: Court of Appeals of Georgia
• Decided: May 1, 1952
• Docket: 33981
• Status: Published

Opinions

Carlisle, J.

Prior to the act of 1937 (Ga. L. 1937, pp. 528, 530; Code, Ann. Supp., § 114-403), it was provided by the act of 1922 (Ga. L. 1922, pp. 185, 186; Code, § 114-403): “Damages and compensation both ¿recoverable; subrogation.—When an employee receives an injury for which compensation is payable under this Title, which injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereto, the employee or beneficiary may institute proceedings both against that person to recover damages and against the employer for compensation, but the amount of compensation to which he is entitled under this Title shall be reduced by the amount of damages recovered. If the employee or beneficiary of the employee in such case recovers compensation under this Title, the employer by whom the compensation was paid, or the party who was called upon to pay the compensation, shall be entitled to reimbursement from the person so liable to• pay damages as aforesaid, and shall be subrogated to the right of the employee to recover from him to the extent of the compensation.” (Italics ours).

By the act of 1937, the words which we have italicized above were stricken from the act of 1922, and the word “net” was added at another point so as to provide that the act of 1922 as amended should read as follows: “When an employee receives an injury for which compensation is payable under this Title, which injury was caused under circumstances whereby payment is made by some person other than the employer to pay damages in respect thereto, the employee or beneficiary may institute proceedings both against that person to recover damages and against the employer for compensation, but the amount of compensation to which he is entitled under this Title shall be reduced by the amount of net damages recovered. If the employee or beneficiary of the employee in such case recovers compensation under this Title, the employer by whom the compensation was paid, or the party who was called upon to pay the compensation shall be entitled to reimbursement from the person so paying damages as aforesaid, and shall be subrogated to the right of the employee to recover from him to the extent of the compensation.”

The Supreme Court in Lloyd Adams Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 641 (10 S. E. 2d, 46), declared, “that the portion of the first sentence of Code § 114-403 [as amended by the Act of 1937], declaring that an injured employee may maintain a suit against a tortfeasor after having accepted payment from him for the damages sustained is unconstitutional and void; and that the second sentence of the section is entirely null and void.”

“It is a uniform rule that, where there is a valid act and an attempted but unconstitutional amendment to it, the original act is not affected, but remains in full force and effect, even though there are express words of repeal, unless it is clear that the legislature intended such repeal.” 66 A. L. R. 1483, citing Barker v. State, 118 Ga. 35 (44 S. E. 874); Georgia Empire Mutual Ins. Co. v. Wright, 118 Ga. 796 (45 S. E. 606); and see also Wright v. Southern Bell Tel. & Tel. Co., 127 Ga. 227 (56 S. E. 116); Clark v. Reynolds, 136 Ga. 817, 824 (5) (72 S. E. 254); Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571, 583 (30 S. E. 2d, 196); Bennett v. Wheatley, 154 Ga. 591 (2) (115 S. E. 83).

Applying the foregoing rule to the Code section here under consideration, we are of the opinion that the law today is the same as it was prior to the purported amendment contained in the act of 1937; and it follows, therefore, that, under the facts of this case, the claimant was not entitled to the award of the State Board of Workmen’s Compensation granting him additional compensation. It appears from the agreed statement of fact which was before the superior court on appeal and from the record in the case that the claimant, under an agreement award, was granted compensation for total disability, beginning on September 9, 1948, at the rate of $20 per week; that payment of this sum was made weekly up until November 9, 1950, a period of some 114 weeks, making a total of some $2280; and that on that date it was made to appear that the claimant had obtained a judgment in a Federal court against a third party tortfeasor for the same injury in the sum of $13,000, which had been paid. Thus, under the first provision of Code § 114-403: “When an employee receives an injury for which compensation is payable under this Title, which injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereto, the employee or beneficiary may institute proceedings both against that person to recover damages and against the employer for compensation, but the amount of compensation to which he is entitled under this Title shall be reduced by the amount of damages recovered,” the board was not authorized to enter the second award in this case granting the claimant additional compensation at the rate of $20 per week for 350 weeks, less the number of weeks already paid under the agreement award; for, after obtaining the judgment for $13,000, the claimant was not entitled to payment of the remaining 236 weeks, which would have brought his total compensation to $7000, the total amount which he could have received in any event, for the compensation should “be reduced by the amount of the damages recovered.” Thomas v. Town of Savannah Beach, 66 Ga. App. 178 (17 S. E. 2d, 747).

There is nothing contrary to what is ruled here in any of the cases dealing with voluntary payments made to the claimant by the third party tortfeasor before judicial determination of legal liability. Those cases have no application to the facts of this case.

Judgment reversed.

Gardner, P.J., and Townsend, J., concur.