The BORDEN COMPANY v. Dollar

Court of Appeals of Georgia

The BORDEN COMPANY v. Dollar

100 S.E.2d 607, 96 Ga. App. 489, 1957 Ga. App. LEXIS 614

CourtCourt of Appeals of Georgia

DecidedOctober 9, 1957

Docket36834

StatusPublished

Cited by13 cases

This text of 100 S.E.2d 607 (The BORDEN COMPANY v. Dollar) 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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The BORDEN COMPANY v. Dollar, 100 S.E.2d 607, 96 Ga. App. 489, 1957 Ga. App. LEXIS 614 (Ga. Ct. App. 1957).

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Opinions

Townsend, J.

Where it affirmatively appears from the award in a workmen’s compensation proceeding that it is based upon an erroneous legal theory, the case should be remanded to the board for further findings. Wilson v. Swift & Co., 68 Ga. App. 701 (23 S. E. 2d 261). The award of the single director in this case appears to have been based on the erroneous legal theory that when a claimant in a workmen’s compensation case is shown to have been injured while driving his automobile at a greater-speed than that allowed by law he is as a matter of law and under all circumstances precluded from recovery. That this is erroneous, see Reid v. Raper, 86 Ga. App. 277 (1) (71 S. E. 2d 735). On the other hand, the full board seems from the above quoted portion of the award to have been of the opinion that, since the question before it was whether the claimant was guilty of a crime, it was necessary for the employer to assume the burden of proving beyond a reasonable doubt that it was the intention of the claimant to commit the crime. This also is erroneous, for, under Code § 38-105, “In all civil cases the preponderance of evidence is considered sufficient to produce mental conviction.” Accordingly the case must be reversed and remanded to the full board for the sole purpose of making a finding of fact by a preponderance of the evidence and the entry of an award, without taking additional testimony. The claimant is entitled to recover unless the employer has convinced the full [491]*491board by a preponderance of the evidence that the claimant’s injuries and disability proximately resulted from his own wilful misconduct in the commission of the unlawful act of intentionally operating his automobile at a greatly accelerated rate of speed. Under Code § 114-105 the burden of proof is on, the employer to establish this defense. Under Code § 38-105, supra, this burden need be carried only by a preponderance of the evidence. The judge of the superior court erred in affirming the award of the full board.

Judgment reversed and remanded with direction.

Carlisle, J., concurs. Quülian, J., concurs specially. Gardner, P. J., disqualified.

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Townsend, J.

Where it affirmatively appears from the award in a workmen’s compensation proceeding that it is based upon an erroneous legal theory, the case should be remanded to the board for further findings. Wilson v. Swift & Co., 68 Ga. App. 701 (23 S. E. 2d 261). The award of the single director in this case appears to have been based on the erroneous legal theory that when a claimant in a workmen’s compensation case is shown to have been injured while driving his automobile at a greater-speed than that allowed by law he is as a matter of law and under all circumstances precluded from recovery. That this is erroneous, see Reid v. Raper, 86 Ga. App. 277 (1) (71 S. E. 2d 735). On the other hand, the full board seems from the above quoted portion of the award to have been of the opinion that, since the question before it was whether the claimant was guilty of a crime, it was necessary for the employer to assume the burden of proving beyond a reasonable doubt that it was the intention of the claimant to commit the crime. This also is erroneous, for, under Code § 38-105, “In all civil cases the preponderance of evidence is considered sufficient to produce mental conviction.” Accordingly the case must be reversed and remanded to the full board for the sole purpose of making a finding of fact by a preponderance of the evidence and the entry of an award, without taking additional testimony. The claimant is entitled to recover unless the employer has convinced the full [491]*491board by a preponderance of the evidence that the claimant’s injuries and disability proximately resulted from his own wilful misconduct in the commission of the unlawful act of intentionally operating his automobile at a greatly accelerated rate of speed. Under Code § 114-105 the burden of proof is on, the employer to establish this defense. Under Code § 38-105, supra, this burden need be carried only by a preponderance of the evidence. The judge of the superior court erred in affirming the award of the full board.

Judgment reversed and remanded with direction.

Carlisle, J., concurs. Quülian, J., concurs specially. Gardner, P. J., disqualified.

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100 S.E.2d 607, 96 Ga. App. 489, 1957 Ga. App. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-borden-company-v-dollar-gactapp-1957.

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