Opinion
31354.
DECIDED SEPTEMBER 5, 1946.
Appeal; from Fulton Superior Court — Judge A. L. Etheridge. May 8, 1946.
T. Elton Drake, for plaintiff in error.
Matthews, Long Moore, contra.
Findings of fact in an award of the State Board of Workmen's Compensation, supported by any evidence, are, in the absence of fraud, conclusive on the reviewing courts.
DECIDED SEPTEMBER 5, 1946.
Mrs. J. D. Oldham, widow of J. D. Oldham, filed her claim for compensation with the State Board of Workmen's Compensation for the death of her husband, an employee of Union News Company.
It appears from the evidence: That Oldham had been employed by Union News Company for several years as a vendor of soft drinks, candies, fruits, etc., on the passenger trains of the N.C. St. L. Railway Company, and was so employed on the night of June 14, 1945, on a trip from Chattanooga to Nashville, Tennessee. Oldham had placed his supply of confectionery, etc., in the rear vestibule of the fifth car from the engine, against the door on the engineer's side, or right-hand side of the train; and had placed his soft-drink cooler in the front vestibule of the sixth car from the engine against the door on the fireman's side, or left-hand side of the train. At about two o'clock in the morning of June 15, a passenger occupying a seat in the fifth car came to the rear vestibule of that car to get a Coca-Cola; he found Oldham asleep, sitting on his baggage in the rear vestibule of the fifth car. The passenger, one Arthur LeClair, awoke Oldham and asked for a Coca-Cola, and as Oldham arose and started into the front vestibule of the sixth car, LeClair stepped to the door of the train opposite the position in which Oldham had been sleeping and looked out. He waited about two minutes, and when Oldham did not return, he walked to where Oldham had apparently gone to get the Coca-Cola, namely, into the front vestibule of the sixth car, and found the door on the right-hand side of the train, opposite the position of the soft-drink cooler, open. LeClair ran into the compartment of the sixth car and stopped the train by pulling the emergency cord. Oldham was found dead beside the track. LeClair did not see Oldham fall or jump from the train, and though he was the last person to see Oldham alive, he was unable to say how Oldham met his death. No witness testified that he saw Oldham either fall or jump from the train. Members of the train crew stated that the doors to the two vestibules in question had been closed earlier when they had had occasion to pass through the cars; and that they were of the opinion that neither Oldham nor the passenger LeClair had been drinking (alcoholic beverages).
The hearing director found as a matter of fact that Oldham came to his death accidentally by falling from the train, that the accident arose out of and in the course of his employment, and that he came to his death through no desire on his part to destroy himself or with the intention of committing suicide, and entered an award for the claimant.
On appeal to the full board and to the Superior Court of Fulton County, the award of the hearing director was affirmed, and the defendant excepted.
The only question for determination urged by counsel for the defendant is whether there is sufficient evidence to warrant the finding of the hearing director that Oldham's death arose out of and in the course of his employment. The last person to see Oldham prior to his death was the passenger LeClair. LeClair had come to the rear vestibule of the fifth car from the engine in order to obtain a Coca-Cola. One of the duties incident to Oldham's employment was the selling of soft drinks to the passengers on the train. LeClair found Oldham asleep in the vestibule of the fifth car, awoke him, and asked that he get him a Coca-Cola. Oldham arose and walked toward the front vestibule of the sixth car where the soft drinks were stored. LeClair turned and gazed through the left door of the vestibule as he waited for Oldham to return with his Coca-Cola. Oldham did not return, and after waiting some two minutes LeClair went in search of him, and not finding him in the vestibule of the sixth car and observing that the right-hand door of the vestibule was open, LeClair ran into the compartment of the sixth car and stopped the train by pulling the emergency cord. Upon investigation Oldham was found dead beside the track. There being no evidence of how Oldham met his death, suicide is precluded by the legal presumption that he met his death accidentally ( Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706, 165 S.E. 850, and cases cited; Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859, 179 S.E. 390; Jefferson Standard Life Ins. Co. v. Bentley, 55 Ga. App. 272, 190 S.E. 50; Christensen v. New England Mut. Life Ins. Co., 71 Ga. App. 393, 31 S.E.2d 214; New York Life Ins. Co. v. King, 28 Ga. App. 607, 112 S.E. 383; Travelers Ins. Co. v. Sheppard, 85 Ga. 751 (29), 12 S.E. 18; New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, 200 S.E. 522); and there being no evidence that, upon being requested to furnish LeClair with a Coca-Cola, Oldham entered the vestibule of the sixth car where the Coca-Colas were stored for any purpose incompatible with his duty, the only reasonable inference to be drawn is that drawn by the hearing director; and, in view of LeClair's positive, uncontradicted evidence, we think the finding authorized that Oldham's death occurred within the period of his employment, at a place where he could reasonably be expected to be, and while he was fulfilling his duty in securing a Coca-Cola for a passenger, and this — aided by the presumption against suicide, which we have discussed above — is to say that the death of Oldham arose out of and and in the course of the employment by reason of an accident, which was the hearing director's finding. There being evidence which would authorize the hearing director's finding, such finding of fact is conclusive upon the court, and this is a rule so well established under our law as to require no citation of authority.
In the light of what has just been said in the foregoing paragraph, the court did not err in overruling the appeal.
Judgment affirmed. Sutton, P. J., and Parker, J., concur.