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BESCO CORPORATION v. BUICE et al.
37617.
NICHOLS, Judge.
Workmen's compensation. Fulton Superior Court. Before Judge Whitman. January 19, 1959.
1. A judgment on a plea in bar to a plaintiff's petition is not a judgment to which a writ of error will lie as being either a final judgment or a judgment that would have been final if rendered as contended for by the movant (Martin v. Green, 188 Ga. 444, 4 S. E. 2d 137; Levy v. Logan, 98 Ga. App. 584, 106 S. E. 2d 185); and while the act of 1957 (Ga. L. 1957, pp. 224, 230; Code, Ann., 6-701) allows direct appeals from a judgment of the trial court on certain pleas in bar, to wit, pleas to the jurisdiction and pleas of res judicata, such act cannot be construed as providing for direct writs of error on all judgments dealing with all pleas in bar.
2. The plea in bar in the present case is not a plea of res judicata, but rather is a collateral attack upon the judgment of the Superior Court of Berrien County for having reversed the award of the State Board of Workmen's Compensation, issued on August 15, 1956, and nothing appears on the face of the judgment to indicate or even suggest any lack of jurisdiction on the part of Berrien Superior Court. Therefore the plea in bar in the case sub judice, not being such plea as contemplated and as would come within the tends of Code (Ann.) 6-701, this court has no jurisdiction of the writ of error and it must be
James D. Buice sued Besco Corporation and Thomas P. Bentley to recover damages for personal injuries allegedly sustained when a pickup truck, owned by Besco Corporation and being driven by Thomas P. Bentley, in which Buice was riding, collided with a utility pole. The petition proceeded against Bentley and Besco Corporation upon the theory that defendant Bentley was grossly negligent and that his negligence was imputable to defendant Besco Corporation. To the petition defendant Besco Corporation filed its answer and also a plea in bar, setting out that defendant Besco Corporation was subject to and came within the terms of the Workmen's Compensation Act of Georgia, and that the plaintiff at the time of his injury was an employee of defendant Besco Corporation and had never rejected the provisions of the Workmen's Compensation Act, that plaintiff's injury that he is complaining of occurred by an accident arising out of and in the course of his employment with defendant Besco Corporation. Hearing was had on the plea in bar before a judge of Superior Court of Fulton County sitting without jury, jury having been waived by all parties. At the hearing evidence was introduced without contradiction, that on September 2, 1954, plaintiff Buice had entered into an agreement with defendant Besco Corporation and its compensation carrier for the payment of compensation under the Georgia Workmen's Compensation Act for disability resulting from injuries sustained in the collision complained of in plaintiff's action for damages. This agreement was approved by the State Board of Workmen's Compensation and an award issued by said board on September 9, 1954. No appeal was taken from this award within thirty days subsequent thereto. On April 10, 1956, plaintiff Buice filed with the State Board of Workmen's Compensation his motion to vacate and set aside the approval of the agreement and subsequent award issued by the State Board of Workmen's Compensation in the matter. Thereafter hearing was had on plaintiff's motion and on August 15, 1956, an award issued denying the motion of plaintiff to vacate and set aside the award issued on September 9, 1954. The last award of the State Board of Workmen's Compensation of August 15, 1956, was appealed by plaintiff to the Superior Court of Berrien County, and on December 13, 1956, the Superior Court of Berrien County reversed same, holding among other things that the alleged injuries of plaintiff did not arise out of and in the course of his employment with Besco Corporation, and that the State Board of Workmen's Compensation was without jurisdiction of the subject matter. From this judgment of the Superior Court of Berrien County reversing the State Board of Workmen's Compensation no appeal was ever taken, and thereafter, on April 12, 1957, the judgment of the Superior Court of Berrien County was conformed to by the State Board of Workmen's Compensation. On January 19th, 1959, the Superior Court of Fulton County entered judgment against said plea in bar. It is to this judgment of the Superior Court of Fulton County that the defendant Besco Corporation excepts, assigns error and brings the case here for review.
J. Corbett Peek, Jr., T. J. Long, contra.
T. J. Long, Ben Weinberg, Jr., for plaintiff in error.
DECIDED APRIL 23, 1959 -- REHEARING DENIED MAY 12, 1959.
Saturday May 23 00:33 EDT


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