Liberty Mutual Insurance v. Bray

222 S.E.2d 70, 136 Ga. App. 587, 1975 Ga. App. LEXIS 1429

• Court: Court of Appeals of Georgia
• Decided: October 30, 1975
• Docket: 50524
• Status: Published

Opinions

Stolz, Judge.

In this workmen’s compensation case, the deputy director and full board denied compensation. On appeal to the Superior Court of Stephens County, the case was reversed, resulting in this appeal.

• The deputy director made the following finding of fact: "a. That on November 3, 1972, the claimant was working for the employer as a spray painter at an average weekly wage of $229.63. b. That while proceeding across a public highway at about 12:30 a. m., on November 3, 1972, in order to get from the area on the premises of his employer where he normally worked to an area across the public highway to a parking lot provided by the employer where his vehicle was parked, he was struck by a vehicle proceeding in a westerly or southwesterly direction at a legal rate of speed and in the proper lane, and that as a result of this impact he sustained totally disabling injuries to both legs and his head. c. That he intentionally selected this point of crossing the highway with full knowledge that some 300 feet to his left or to the east there was a pedestrian crossing with traffic light controls, d. That in attempting to cross the public highway at the point intentionally selected he failed to observe and yield the right-of-way to the vehicle which struck him. e. That the above-described accident, having occurred while the claimant was en route to his vehicle parked on the premises of the employer, was an accident arising out of and in the course of his employment, proximately caused by the failure of the claimant to perform a duty required by statute, the violation of which is punishable as a misdemeanor.” The uncontroverted evidence supports these findings of fact, particularly findings (c) and (d).

Former Code Ann. § 68-1657 (a) (Ga. L. 1953, Nov. Sess., pp. 556, 592; 1967, pp. 542, 543) provided: "Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway: Provided, however, that this section shall not apply to roadways in areas where there are no crosswalks nor intersections at which pedestrians may cross the roadway, but that on such roadways in such areas pedestrians crossing the roadway shall have equal rights with vehicles on the roadway.”

The superior court erroneously held that this Code section does not apply in the unincorporated areas of a county unless there is specific evidence to show that the State Highway Board or the county had established an ordinance; or otherwise, that pedestrians could only cross this highway at the plant intersection light. This view completely ignores the provisions of Code Ann. § 68-1610 (c) (Ga. L. 1953, Nov. Sess., pp. 556, 569), to wit: "The disregard or disobeyance of the instructions of any official traffic-control device or signal, placed in accordance with the provisions of this law, by the driver of a vehicle, shall be deemed as prima facie evidence of a violation of law, without requiring proof of who and by what authority such sign or device has been erected.”

The fact that the claimant was a pedestrian and not the driver of a vehicle at the time of his injury, does not diminish the applicability of § 68-1610 (c), supra, in reference to the traffic control device (light) referred to in the evidence and the deputy director’s finding of fact.

The provision of former Code Ann. § 68-1657 (a), supra, that, "this section shall not apply to roadways in areas where there are no crosswalks nor intersections at which pedestrians may cross the roadway . . .” in no way takes the claimant out from under the general provisions of § 68-1657 (a), supra. The evidence showed that there was a pedestrian crossing with traffic light controls approximately 300 feet from the place where claimant "jaywalked” across the highway.

"No compensation shall be allowed for an injury or death due to the employee’s wilful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injure another, or due to intoxication or wilful failure or refusal to use a safety appliance or perform a duty required by statute, or the wilful breach of any rule or regulation adopted by the employer and approved by the State Board of Workmen’s Compensation, and brought to the knowledge of the employee prior to the accident. The burden of proof shall be upon him who claims an exemption or forfeiture under this section.” Code § 114-105.

"Misconduct is improper or wrong conduct. When improper or wrong conduct is intentionally or deliberately done, it becomes wilful misconduct. It is true that wilful misconduct means something different from and more than negligence. Wilful misconduct by an employee, preventing recovery of compensation, involves an intentional, deliberate action, with a reckless disregard of consequences, either to himself or another, something less than self infliction of injury, but greater than gross negligence or wanton carelessness. Wilful misconduct is much more than mere negligence, or even than gross negligence. It involves conduct of a quasi-criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences. [Cits.] Wilful misconduct includes all conscious or intentional violations of definite law or rules of conduct, obedience to which is not discretionary, as distinguished from inadvertent, unconscious, or involuntary violations. [Cit.] The conscious and intentional violation of a penal statute, which constitutes wilful misconduct of the employee, is the conscious or intentional doing of an act which violates the statute, though he be not thinking of breaking it. [Cit.] The test of misconduct in the case at bar is not the doing of an act for the purpose of and with a specific intent of violating the statute but the wilful and conscious doing of the act which is in violation of the statute. To require of the employer to show that the employee thought of the statute and deliberated as to its breach would take away the defense of this wilful violation, and would unduly limit the scope or definition of wilful misconduct. [Cits.] We have shown above that wilful misconduct involves conduct of a quasi-criminal nature. This being so, then criminal conduct is wilful misconduct. If conduct ever becomes misconduct, and if misconduct ever becomes wilful misconduct, it is when an employee intentionally commits a crime which results in his injury or death. So we are of the opinion that the commission of a crime is wilful misconduct within the meaning of our statute; and that the employer should not be required to make compensation for his injury, or death, due to his violation of a criminal statute, such violation being the proximate cause of his injury or death.” (Emphasis supplied.) Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 342 (150 SE 208) and cits.

The Carroll rule, supra, was made applicable in a "jaywalking” case by this court in Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391 (130 SE2d 136), in an opinion by Judge (now Justice) Jordan, concurred in by Presiding Judge (now Chief Justice) Nichols and Judge (later Justice) Erankum.

The case is controlled adversely to the claimant by the. foregoing authorities.

The judgment of the Superior Court of Stephens County is reversed, with direction that the award of the State Board of Workmen’s Compensation be made the judgment of that court.

Argued April 9, 1975 Decided October 30, 1975 Rehearing denied November 18, 1975. Erwin, Epting, Gibson & McLeod, E. Davison Burch, for appellants. Robert M. Ray, for appellee.

Judgment reversed with direction.

Bell, C. J., Pannelly P. J., Deen, P. J., and Marshall, J., concur. Quillian, Evans, Clark and Webb, JJ., dissent.