Bishop v. Weems, 162 S.E.2d 879 (Ga. Ct. App. 1968). · Go Syfert
Search
Bishop v. Weems, 162 S.E.2d 879 (Ga. Ct. App. 1968). Cases Citing This Book View Copy Cite
“if there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action.”
22 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Smith v. Ellis (ga, 2012-09-10)
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 6 distinct citers.
discussed Cited as authority (quoted) Smith v. Ellis (2×) also: Cited as authority (rule)
Ga. · 2012 · quote attribution · 1 verbatim quote · confidence low
if there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action.
discussed Cited as authority (rule) Ridley v. Monroe (2×)
Ga. Ct. App. · 2002 · confidence medium
(Citation omitted.) Bishop v. Weems, 118 Ga. App. 180, 181 (4) ( 162 SE2d 879 ) (1968).
discussed Cited as authority (rule) Heffley v. Adkins
Ga. Ct. App. · 1993 · confidence medium
Thus, defendant was not a fellow employee whom she is barred from suing by the exclusive remedy rule. “ ‘[I]f there were an award of no compensation because of no coverage under *737 the Act, it would be an adjudication of no coverage and the common law action should proceed.’ ” Associated Hosts of Ga. v. Marley, 184 Ga. App. 352, 354 ( 361 SE2d 496 ) (1987), quoting Bishop v. Weems, 118 Ga. App. 180, 181 (4) ( 162 SE2d 879 ) (1968). 2.
discussed Cited as authority (rule) Venable v. John P. King Manufacturing Co.
Ga. Ct. App. · 1985 · confidence medium
Synalloy Corp. v. Newton, supra. The defendant below met its burden and is entitled to the same conclusion set out in Bishop v. Weems, 118 Ga. App. 180, 181 ( 162 SE2d 879 ) (1968): “If there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action.” Here, there has been a finding of coverage but no favorable award because the proof did not establish the existence of the disease in the employee.
cited Cited as authority (rule) Brown v. Trefz & Trefz
Ga. Ct. App. · 1985 · confidence medium
Bishop v. Weems, 118 Ga. App. 180, 181 (4) ( 162 SE2d 879 ) (1968). 2.
cited Cited as authority (rule) Harden v. Clarke
Ga. Ct. App. · 1970 · confidence medium
Covington v. Berkeley Granite Corp., 182 Ga. 235 ( 184 SE 871 ); Bishop v. Weems, 118 Ga. App. 180, 181 ( 162 SE2d 879 ).
BISHOP Et Al.
v.
WEEMS
43430.
Court of Appeals of Georgia.
Jul 10, 1968.
162 S.E.2d 879
Matthews, Maddox, Walton & Smith, James D. Maddox, Oscar M. Smith, for appellants., Robert Edward Surles, for appellee.
Whitman, Felton, Eberhardt.
Cited by 11 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 92%
Citer courts: Supreme Court of Georgia (1)
Whitman, Judge.

1. “A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement; but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit shall not abate the action.” Code § 3-607. (Emphasis supplied.)

2. “The State Board of Workmen’s Compensation is not only not a ‘like court’; it is not a court at all but is an administrative body with only those powers and duties given it[*181] by statute. Plummer v. State, 90 Ga. App. 773 (84 SE2d 202); Travelers Ins. Co. v. Haney, 92 Ga. App. 319 (88 SE2d 492); Maryland Cas. Co. v. Stephens, 76 Ga. App. 723 (47 SE2d 108); City of Hapeville v. Preston, 67 Ga. App. 350 (20 SE2d 202); Aetna Life Ins. Co. v. Davis, 172 Ga. 258 (157 SE 499).” Baggett Transportation Co. v. Barnes, 108 Ga. App. 68, 72 (132 SE2d 229).

Argued February 5, 1968 Decided July 10, 1968 Rehearing denied July 23, 1968

3. Therefore, in the present case, which is a common law negligence action by the plaintiff, Mrs. Mary B. Weems, against defendants Harold S. Bishop and James W. Busbin, individually and d/b/a Bishop & Busbin Construction Company, for the wrongful death of her husband allegedly caused by the defendants’ negligence, the defendants’ motion for summary judgment having as one ground thereof that the present action should abate because a claim arising out of the same occurrence was pending before the State Board of Workmen’s Compensation, was properly overruled.

4. The defendants herein, in their motion for summary judgment, also urged dismissal of the action for the reason that the claim before the Board of Workmen’s Compensation is a bar to the • present action. This ground is also without merit. A defendant may assert coverage by the Workmen’s Compensation Act as a bar to a common law negligence action against him arising out of the same occurrence. And this is true whether or nht a claim for compensation has been made. But in order to sustain such assertion one must plead and prove coverage under the Act. McCluskey v. American Oil Co., 224 Ga. 253 (161 SE2d 271). If there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action. On the other hand, if there were an award of no compensation because of no coverage under the Act, it would be an adjudication of no coverage and the common law action should proceed. But the record indicates that, as yet, there has been no award and hence no adjudication either way, and if the defendants are to sustain their plea they have the burden of showing coverage as a bar. Instead, defendants have denied any relationship between them and the decedent which would subject them to the Workmen’s Compensation Act.

Judgment reversed.

Felton, C. J., and Eberhardt, J., concur. [*182] Matthews, Maddox, Walton & Smith, James D. Maddox, Oscar M. Smith, for appellants. Robert Edward Surles, for appellee.