Pasler v. Maryland Casualty Co.

103 S.E.2d 90, 97 Ga. App. 263, 1958 Ga. App. LEXIS 757

• Court: Court of Appeals of Georgia
• Decided: February 13, 1958
• Docket: 36984
• Status: Published

Opinions

Nichols, Judge.

The fact that the claimant was injured in an automobile collision while engaged in the business of the corporation and not because of any misconduct on his own part is undisputed, but it is contended, and has been contended throughout the litigation, that the claimant was not an employee within the meaning of the Workmen’s Compensation Act, as amended, and that he is therefore not entitled to compensation.

The evidence shows conclusively that the claimant is the sole shareholder and president of the employing corporation and that in addition to the duties imposed upon him by the charter and bylaws of the corporation he was also a salesman and performed other duties which would classify him as an employee within the meaning of the Workmen’s Compensation Act. The full board in reversing the award of the single director held that at the time of the collision the claimant was engaged in the duties of the president of the corporation and not the duties of an employee, and that he was therefore not entitled to compensation.

Code § 114-607 provides in part: “A policy of insurance issued under this Title shall always first be construed as an agreement to pay compensation; and an insurer who issues a policy of compensation insurance to an employer not subject to this Title shall not plead as a defense that the employer is not subject to the Title; and an insurer who issues to an employer subject to this Title a policy of compensation insurance covering an employee or employees ordinarily exempt from its provisions shall not plead the exemption as a defense. In either case compensation shall be paid to an injured employee or to the dependents of a deceased employee for a compensable accident as if the employer and/or the employee were subject to this Title, the policy of compensation insurance constituting a definite contract between all parties concerned.”

The policy of insurance issued by the insurer to the employing corporation read in part as follows: “Employees covered. Y. This agreement shall apply to such injuries sustained by any person or persons employed by this employer whose entire remuneration shall be included in the total actual remuneration for which provision is hereinafter made, upon which remuneration the premium for this policy is to be computed and adjusted, and also to such injuries so sustained by the president, any vice-president, secretary or treasurer of this employer, if a corporation. The remuneration of any such designated officer shall not be subjected to a premium charge unless he is actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman.” . . . and . . . “Basis of premium. Condition A. The premium is based upon the entire remuneration earned, during the policy period, by all employees of this employer engaged in the business operations described in said declarations' together with all operations necessary, incident or appurtenant thereto, or connected therewith whether conducted at such work places or elsewhere in connection therewith or in relation thereto; excepting however the remuneration of the president, any vice-president, secretary, or treasurer of this employer, if a corporation, but including the remuneration of any one or more of such designated officers who are actually performing such duties as are ordinarily,undertaken by a superintendent, foreman or workman. .

The evidence adduced at the hearing showed without dispute that the claimant’s compensation was included in the calculations on which the premium was based, and there was no conflict that at least some of the duties performed by the claimant, who was president of the corporation, were duties which would be customarily performed by a “superintendent, foreman or workman.”

The policy did not provide that a person in the position of the claimant here would be covered by the policy “only while such person is engaged in duties which are customarily the duties of a superintendent, foreman or workman” so that it would be necessary to determine whether, at the time of the injury, the claimant was engaged in the duties of a superintendent, foreman or workman.

Under Code § 114-607, supra, the insurer was estopped from defending the present claim upon the ground that the claimant, the president of the employing corporation, was not an employee under the terms of the Workmen’s Compensation Act, and it is now unnecessary to determine if the “dual capacity” rule, which provides that certain executives are employees within the meaning of the Workmen’s Compensation Act while performing some duties and are not such employees while performing other duties, (see 15 A. L. R. 1285; 81 A. L. R. 645), is applicable in Georgia.

Since the insurer is estopped from defending the claim on the ground that the claimant was not an “employee” of the corporation, and the evidence demanded a finding that the claimant’s injury otherwise arose out of and in the course of his employment, the judgment of the superior court affirming the award of the full board must be reversed. Direction is given that the superior court reverse the award of the full board with direction that the full board enter an award for the claimant in the amount shown by the evidence to be due for compensation and medical expense.

Judgment reversed with direction.

Gardner, P. J., Carlisle, and Quillian, JJ., concur.. Townsend, J., concurs specially. Felton, C. J., dissents.