Hensel Phelps Construction Co. v. Johnson , 161 Ga. App. 631 ( 1982 )

Birdsong, Judge.

This is a companion case to Parsons, Brinckerhoff, Quade & Douglas v. Johnson, 161 Ga. App. 634 (288 SE2d 320), post.

Appellant Hensel Phelps Construction Co., a contractor on a MARTA rapid rail construction project, contracted with A. R. Winter Company, an independent subcontractor, for Winter to unload steel beams used in constructing the rail system. Appellee Thomas Johnson was employed by A. R. Winter Co. as a construction worker. Following Johnson’s injury on the job, A. R. Winter Co. paid Johnson all entitled statutory workers’ compensation benefits under the act. Johnson and his wife subsequently sued Hensel Phelps in negligence, and received a verdict therefor. Appellant Hensel Phelps contends for the first time on appeal that the trial court erred in allowing the appellees’ negligence case to go to the jury inasmuch as at the time of Mr. Johnson’s injury, Hensel Phelps was his statutory employer and thus the Johnsons’ complaints based in tort were barred under Code Ann. § 114-112 and 114-103 because Johnson had already received from his immediate employer, A. R. Winter Co., all workers’ compensation benefits to which he was entitled.

We are constrained to agree that the judgment awarding Mr. and Mrs. Johnson damages should be reversed, based on the recent Georgia Supreme Court case of Wright Assoc. v. Rieder, 247 Ga. 496 (277 SE2d 41). That case, which was decided April 21,1980, five days after the jury’s verdict in the case below, held that under Code Ann. §§ 114-103 and 114-112, a statutory employer is immune to any action in negligence by an employee of a subcontractor or independent contractor who has already paid the employee workers’ compensation benefits. The Rieder case applies to the case at bar. On appeal we apply the law as it exists at the time of appeal rather than the law prevailing at the rendition of the judgment under review; we may reverse a judgment that was correct when rendered, where the law has been changed in the meantime and where no vested right will be impaired. City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759). See similarly, Sentry Indemnity Co. v. Sharif, 156 Ga. App. 828 (1) (276 SE2d 54). Until time for review has passed, a party to a judgment has no vested interest in it (Calhoun v. State Hwy. Dept., 223 Ga. 65, 67 (153 SE2d 418)) and syllogistically, no vested righttothe cause of action underlying the judgment. The rule is the same whether the change of law removing the cause of action is by judicial decision interpreting a statute or by legislative enactment. Dept. of Transp. v. Kendricks, 244 Ga. 613 (261 SE2d 391). Appellant Hensel Phelps’ argument is incorrect where it contends that the trial court erred in denying its motion for directed verdict at trial, for the motion was based on the contention that Hensel Phelps was not liable to Mr. Johnson who was alleged to be a “borrowed servant,” and was without merit on the facts. Consequently, the trial court did not err in sending the case to trial on that basis. But, although the appellees aptly contend that appellant cannot claim error now because it did not raise on motion for directed verdict (see Code Ann. § 81A-150) the issue it raises on appeal, the simple answer to this is that appellant could not raise a defense that did not then exist. The same answer applies to our own rule that we will not consider what is raised for the first time on appeal. See, e. g., Sentry Indemnity Co., supra, Birdsong, J. dissent to denial of rehearing, p. 836.

Decided February 18, 1982 Rehearing denied March 15, 1982 Paul A. Howell, Jr., Terrence Lee Croft, for appellant. Judson Graves, G. Michael Hartley, for appellees.

The record raises no real issue or question that appellant Hensel Phelps had, at the time of Johnson’s injury, less than three employees regularly in service in this state so as to be not subject to the Workers’ Compensation Act (see Code Ann. § 114-107) and to the immunity from tort claims granted thereunder, so we need not reach that question.

Judgment reversed.

Shulman, P. J., and Sognier, J., concur.