Stoker v. Wood , 161 Ga. App. 110 ( 1982 )

161 Ga. App. 110 (1982) 289 S.E.2d 265

STOKER
v.
WOOD.

62633.

Court of Appeals of Georgia.

Decided January 11, 1982. Rehearing Denied January 28, 1982.

Ben Lancaster, for appellant.

Elmer L. Nash, for appellee.

SOGNIER, Judge.

Appellant, an employee of Trans-Global Construction Company, sued P. R. Wood, president and sole stockholder of Trans-Global, for injuries sustained on the job. Appellant received workers' compensation benefits. The trial court granted summary judgment in favor of Wood. We affirm.

Appellant contends that the trial court erred in granting summary judgment because a sole stockholder and president of a corporation is not entitled to immunity under the Workers' Compensation Act, Code Ann. § 114-103, which exempts employees of the same employer from suit as a third party tortfeasor. It is not necessary for us to decide if Wood is immune from suit as an employee. By affidavit, it was shown conclusively that Wood was the alter ego of the corporation, Trans-Global. Where it is shown conclusively that an executive of a corporation acts in his representative capacity as the alter ego of the corporation, an employee injured in the course of his employment may not recover workers' compensation benefits and then sue the executive of the corporation in tort. Chambers v. Gibson, 145 Ga. App. 27, 28 (243 SE2d 309) (1978).

Appellant also contends that Code Ann. § 114-103 is unconstitutional because it deprives him of his right to sue a fellow employee. Code Ann. §§ 2-101, 2-203 and 2-209. Pretermitting the question of whether or not Wood is an "employee," this question has been decided adversely to appellant by our Supreme Court in Williams v. Byrd, 242 Ga. 80 (247 SE2d 874) (1978).

The trial court correctly granted summary judgment in favor of Wood.

Judgment affirmed. Shulman, P. J., and Birdsong, J., concur.