Carroll v. Ætna Life Insurance

ON MOTION FOR REHEARING.

Bell, J.

Tire motion for a rehearing is based upon a number of grounds, but the chief complaint seems to be that in that part of our decision in which we held that the industrial commission made no finding of fact as to the speed at which the employee was traveling or as to his, control of the vehicle, except that in each respect he was violating the law, we placed too narrow a construction upon the findings and conclusions of that tribunal. The movant’s contention is, in substance, that the commission predicated its ultimate conclusion upon the combined facts of the case, and that its denial of compensation was tantamount to a finding from all the evidence that the employee was guilty of wilful misconduct within the meaning of section 14 of the compensation act. While we may have been incorrect in stating that the commission made no findings of fact other than those indicated above, we remain unchanged in our opinion that compensation was denied merely because the industrial commission entertained the view that the act of the employee in violating the law constituted within itself such wilful misconduct as to defeat the claim, irrespective of any other *85facts which the commission may have found to exist. From the findings made and from the opinion delivered in connection therewith, we continue to think that the commission deemed such transgression to be the governing factor, and either excluded all other facts from consideration or (what was the same thing) treated them as unnecessary in establishing the defense.

Without proceeding to any lengthy discussion, we may say a few words in support of this interpretation of the commission’s action. After briefly stating the case and setting forth the nature of the defense made, the commission said: “This defense raises two questions, — one of fact and one of law. First, did Carroll’s death result from a violation of said statute? Second, if it did, does such act bar his dependents from compensation?” Then follows an opinion containing two divisions, devoted respectively to answering the questions thus propounded. The first division concludes with this statement: “A careful consideration of the evidence and all the facts and circumstances impels the finding that Carroll did not have his car under control as contemplated by the statute, and that his speed in approaching the crossing was considerably in excess of ten miles per hour. It must also be held that the failure of Carroll to observe the statutory requirements in approaching a railroad crossing was the proximate cause of his death.” The second division begins with the following question: “Does the fact that Carroll met his death while violating the statute regulating the speed and manner of approaching a railroad crossing bar his dependents from compensation?” It is apparent that the question which the commission then proposed to answer was whether the mere fact that the employee was violating, the law should be controlling and operate to bar compensation. The argument which followed was obviously intended to sustain the affirmative of this question, concluding with this statement: “Under the facts in this case and the plain terms of the statute, it is the opinion of the commissioner that no recovery can be had. Compensation is therefore denied.” If we considered only the final statement in each division of the commission’s opinion, or considered both statements together, without examining the opinion as a whole, it might possibly be inferred that the commission’s finding that the decedent was guilty of wilful misconduct was an inference which it had drawn from all the facts and circumstances; but *86we can not so interpret the award when we consider all that the commission said in rendering it. We still think that the commission intended to hold, and did hold, that the mere violation of the penal statute constituted wilful misconduct in the sense of the compensation act, and we also adhere to the view as formerly expressed that such is not the law applicable to a case of this sort.

Upon the legal question involved the following cases, as at least analogous, may be cited, in addition'to the authorities referred to in our original opinion: Southern Railway Co. v. Davis, 132 Ga. 812 (3) (65 S. E. 131); Savannah Electric Co. v. Jackson, 132 Ga. 559 (64 S. E. 680) ; Chattanooga &c. R. Co. v. Liddell, 85 Ga. 482 (5) (11 S. E. 853, 21 Am. St. R. 169); Lanier v. Bugg, 32 Ga. App. 294 (3) (123 S. E. 145). In the Davis case the plaintiff brought suit to recover damages for injuries alleged to have been caused by certain acts of the railway company committed in violation of the public-crossing law. After verdict for the plaintiff the Supreme Court, in holding that there was no evidence to authorize an'instruction upon the subject of punitive damages, said: “There must be something more than the mere proof of failure to give a statutory signal or make a stop required by a statute in approaching a crossing. There must be affirmative evidence of facts tending to show wilfulness, wantonness, or the existence of particular circumstances from which an inference of a conscious indifference to consequences might legitimately be drawn. And these facts must be shown in addition to the mere omission to give statutory signals or'take statutory precautions in approaching crossings. If this be not the law, then practically every case of negligent injury can be made the vehicle of submitting to the jury the question of wilfulness and wantonness, by merely using adjectives in describing the character of the negligence.” See also, in this connection, Ely v. O’Dell, 146 Wash. 667 (264 Pac. 715, 57 A. L. R. 151). In that case it was held that an injury caused by an automobilist while driving a car in a manner prohibited by municipal ordinance is not within the provision of the bankruptcy act denying discharge from liabilities arising from wilful and malicious injuries to the person and property of another. The decision contains a discussion, with a citation of authorities, and has, as we think, some relevancy, in the present inquiry.

Rehearing denied.

Jenlcins, P. J., and Stephens, J., concur.