Opinion
37223.
DECIDED SEPTEMBER 5, 1958. REHEARING DENIED SEPTEMBER 18, 1958.
Workmen's compensation. Schley Superior Court. Before Judges Rees. April 2, 1958.
Whelchel Whelchel, Hoyt H. Whelchel, Jr., for plaintiffs in error.
H. G. Rawls, contra.
1. Where a servant is obliged under his contract of employment to render whatever service is required of him in carrying on the business about which he is employed, an act done at the suggestion of his employer for the benefit of the business and to carry out the employer's policy and plan of conducting the business, is within the scope of the employee's employment.
2. An act connected with the business about which the employee is employed is no less within the scope of his employment, because the manner, time and circumstances under which such act is to be performed are left entirely to his discretion.
3. If at the moment the employee is accidently injured he is engaged in the regular duties of his employment the accident is one occurring in the course and within the scope of his employment.
DECIDED SEPTEMBER 5, 1958 — REHEARING DENIED SEPTEMBER 18, 1958.
Mrs. Velesta B. Hamlin, widow of Herbert C. Hamlin, deceased employee, filed a claim for compensation with the State Board of Workmen's Compensation against the deceased's employer, Hardy Couch Tractor Service and U.S. Fidelity Guaranty Company, insurance carrier.
The parties agreed that Herbert C. Hamlin was an employee of Hardy Couch Tractor Service on June 25, 1957, at an average weekly wage of $65; that Mrs. Velesta B. Hamlin is his widow, and that she and her minor daughter, Beverly Starr Hamlin, are his sole dependents; that Herbert C. Hamlin met his death on June 25, 1957, in Schley county, Georgia, by accident. The arguments of counsel narrow the issues in the case so that the sole question for decision is whether or not the injury and death of this employee arose out of and in the course of his employment with Hardy Couch Tractor Service.
On the hearing of the case all of the evidence on this issue was the testimony of the claimant and employer. Mrs. Hamlin, the claimant, testified in answer to questions propounded: "A. Well, we were coming along on Highway 19. I was asleep at the time — at least, I was half asleep, half awake, and I heard my husband talking to two men, and I woke up and asked him what was wrong, and he said they were having tire trouble and wanted to borrow a jack. They said they had one but it was — must have been a cheap one because it wouldn't hold up the weight of the truck so they could change the tires, and I asked him if he wanted to stop and help them and he said no, that he would rather to go on but he said he didn't want to leave them there in trouble, like they were, so we pulled up — the other truck was going north. Q. You mean, the truck that had the flat tire? A. Yes, sir, and we were coming home, headed south. Q. Was the truck that had the flat tire headed in the same direction on the highway you and your husband were? A. No, sir, headed for Atlanta. Q. Headed from the direction of where you and your husband were going toward Ellaville? A. Yes, sir. Q. And you stopped, and your husband was out assisting him — standing by holding him a light, or something, during the process trying to arrange the tire trouble on the other truck, is that right? A. Yes. Q. Where were you? A. I was helping hold the light too. We both had a flashlight. We had ours and one of Mr. Couch's. Well we were standing there holding the lights and I heard the truck coming, I couldn't see it, because it had to go over a hill. As soon as I heard the truck I don't know what made me see it, but I told them, `there is a truck coming' and so he went up with his light. My husband — to show the man, you know, that we were there with the flashlight. He held it down — went around, you know, waving it, like that, and I had to run around to the side of Mr. Couch's truck and as soon as we saw the truck hit the top of the hill it had bright lights on it — just bright as they could be, and I don't know, but I guess we both knew something was going to happen, because I don't know how fast the truck was going, but it was going a terrific speed and we saw it coming right toward the truck and my husband — last thing he said was for me to run. Q. Was your husband nearer to the Couch truck or the truck you were rendering aid at the time he was struck? A. Nearer the Couch truck. Q. And I believe you say his immediate mission was to undertake to slow the traffic of approaching trucks to let him know of the presence of somebody else on the highway? A. Yes. Q. You say there were four other trucks that had passed the scene there prior to this Bramblett truck? A. Yes. Q. You and your husband both? A. No, just him. Q. In the same manner you were attempting to signal that truck? A. Yes. Q. Then after the truck went by, you went back and resumed repairs to the other truck? A. Yes. Q. At the time this accident happened, the other truck was still on the jack, was it not — you were still in the process of changing the tire? A. Yes. Q. Hadn't completed that? A. No. Q. Your husband had gotten the jack out of Mr. Couch's truck? A. Two of them."
Mr. Hardy Couch testified: "Q. And you operate a tractor repair service in Albany? A. Yes, sir. Q. The deceased, Mr. Hamlin, was one of your mechanics in your employ? A. Yes, sir. Q. What were the nature of his duties in your employment, Mr. Couch? A. Well, that's kind of hard to explain, I operate a tractor repair business, and, actually, not a mechanical shop — more tractor repair. Only mechanical part involved is our own equipment, and we prepare pin bushes out of trucks, and he was, I guess, track mechanic. No specific duties. If I wanted him to help take bolts out — anything that come handy to do. Q. At the time he was killed as has been related here was he on a mission for you to Atlanta? A. Yes, sir, I sent him to Atlanta to pick up some parts. Q. He was driving your truck? A. Yes, sir. Q. And, you had specifically directed him to go to Atlanta for this purpose? A. That's correct. Q. At the time he was killed was he on one of the through routes from Atlanta to Albany? A. I would say he was, three routes we go and any one of them three is all right to go. Q. If he was killed on the highway between Ellaville and Butler, he was on one of the direct and common routes between Atlanta and Albany? A. That's right. Q. Mr. Couch, do you have any policy with reference to what your employees should do in the event they saw a motorist apparently having trouble on the highway? A. My employees, most of the time — I will say, all of them have no specific instructions, but we have this policy, such as stopping, helping on the highway — see if they can stop and help a motorist, I want them to use their own discretion to stop and help them at their own discretion. Q. Do you have an understanding with your employees that you thought it was good business? A. Whether I discussed it as being good business, or not, I couldn't say, but I said any time they could render service, they had my permission to stop and help them and we have winch for that, to help them any way we could Q. In signed statement `wrench' should have been `winch.' Yes, seems that was a typographical error. Q. That's a mechanical appliance that rolls up a wire cable? A. We have on numerous occasions found people slipped off the road and stuck and we taken this winch referred to a `wrench' and taken cab and pulled them out on different occasions. Q. As his employer, did you approve or disapprove of his conduct in undertaking to render aid to this motorist he was rendering aid to? A. Far as helping — anything — he had my permission to help anyone at his discretion. Q. If you had been present, you would not have told him not to render aid to that party? A. No, sir. Q. You probably would have participated in the aid yourself? A. Yes, sir, you couldn't say you would have told him, or wouldn't unless you had been there and seen the condition. A. There are varying conditions I leave to the employee's discretion, but he had my permission. Q. You thought that it was a humanitarian policy to some extent, and another extent, it might be good business is that right? A. That's correct. Q. Mr. Couch, had you ever instructed your employees, specifically, to stop and render aid to anyone on the highway? A. No, sir. Q. Had any of them ever asked you about stopping? A. Well, let me — I have never been with them. In other words, I have given the reasons, we had talked about any time they could help anybody. In fact, the only specific instructions I gave them was not to push anybody with a truck, use the winch to pull them out, but don't push them with my truck. Those are the only specific instructions I ever give them. Q. You were doing what anybody else, with facilities, do to aid a traveler on the highway? A. That's correct. Q. You were doing it in connection with your business? A. No, sir. Q. You didn't hire Mr. Hamlin to help people on the highway? A. Hired him to do anything I thought necessary to do. Q. But, you hired him, specifically as a mechanic in connection with your tractor repair business? A. In hiring him, as I say, didn't give any specific instructions, they do anything connected with my work we had discussed I thought it was good policy to stop and help them at their discretion, but didn't give any specific instructions to stop and help anybody, but we did discuss it, and with all of them driving the trucks — anything to do with trucks — that they could stop and help anybody they could. Q. You had no objections to a man rendering aid to anybody in trouble on the highway? A. That is correct. Q. If he could do it safely? A. They had my permission to use jacks and winches to do it. Q. To do it safely? A. Yes, sir. Q. But that wasn't part of your business? A. No, we are not in the wrecking business. Q. You are not in the auto repair business? A. No, sir. Q. You don't have anything to do with trucks other than those used in tractor repair? A. That's right. Q. You don't maintain anyone else's trucks? A. No, sir. Q. You don't come in contact very much with trucking business? A. No, sir. Let's be a little more specific on that, practically every man has a tractor and a truck, because he has trucks pulling his Dozier pick-ups. To that extent you are, then? A. Yes, sir. Q. The tractor portion of the business in which you are interested is that involving crawler tractors, is it not? A. Yes, sir. Q. And tracks you speak of are tracks on crawler-type tractors? A. Yes, sir. Q. And you hired him, though, in connection with your tractor business? A. Yes. Q. And, of course, he did whatever you asked him to do. If you asked him to run out to your house, pick up something for you, he would do it? A. Yes, sir, repaired our equipment, he did that. Q. Now, what were your specific instructions with reference to this trip. A. Well, there were actually no specific instructions. I said, `Would you like to go to Atlanta, pick up some parts for me'? I said, `get some parts I need tomorrow how about going, getting them and pick them up in Atlanta, bring them back', so he left, then in the morning. Q. Those were your instructions to him on that trip? A. Yes, sir. That was about three o'clock in the afternoon, Olympico is where he picked them up, in Atlanta. Q. Had you ever been with Mr. Hamlin and stopped and helped anyone on the highway. A. Yes, sir. Q. Mr. Couch, I believe Ellaville is fifty miles by dirt road from Albany? A. Approximately, yes sir. Q. And the accident happened, say, five miles on the other side. That would be fifty-five miles. Your business is more or less specialized business? A. That's correct. Q. You repair tracks for crawler type tractors? A. That's correct. Q. Nothing unusual for you to have customers at a distance of fifty or seventy-five miles from Albany? A. Our radius is two hundred miles of Albany, each way. Q. You explained to your employees who travel that you thought it would be in the interest of your business if your traveling mechanics, who happen to be on the highway with this winch equipment in the automobile, and the jack, should stop to render aid to people who might be in distress? A. I didn't get that question exactly how you meant it. Q. You had a general understanding with your employees who would travel for you on your time — A. We had all had a previous discussion about it. Q. And you had a general understanding with your employees who traveled on your time that you thought it would be in the interest of your business if, in their discretion, they saw a motorist in distress, and they stopped to help him, it would have your approval? A. Well, whether there was — I don't know whether emphasis so much be in the interest of my business, other that I, maybe, just said help them for the humanitarian part of it, but we had discussed it and it was my approval to help them. Q. You would regard it as helpful to your business for your employees to be courteous to people in distress? A. Not as much as my business. By the same token, if we broke down, I felt we should be returned with the same help, we travel all areas of the State. Q. In other words, if one of your vehicles was in distress, if you had such an established policy, reciprocity would require some one to render aid to you, and that would be in the interest of your business? A. That's right. Q. And you certainly approved of that dead man's conduct, or what he did that night? A. Unless I was there, but other than that I said, it was my policy to stop and help them, if that answers your question. Q. Are your vehicles out on the highway marked with your company name? A. Yes, sir. Q. And, is the nature of your business such that you have vehicles running over the highways fairly frequently? A. Yes, sir, three operating continuously on the highway. Q. You never specifically told your employees you thought it would be good business to help anyone, did you? A. Well, whether I said, specifically, it would be good business, that, I can't recall. Q. You told them you had no objection to their helping anyone in distress? A. That's correct, they had my permission. In other words it wasn't an order to them. My permission to use their discretion to help them, they had that at any time they felt they could render service to them. Q. It was up to them? A. Yes, sir. Q. You sir. Q. You weren't telling them to do it? A. No, sir, couldn't instruct a man on anything like that, I don't believe. Q. In other words, if they did it, they were doing it on their own? A. I don't know how you are putting that, if you put it that way. If they did something a little wrong on a man's tractor, they did it on their own, but still doing it with my permission, or scope of employment. I don't understand your question. Q. I understand that's in the tractor business — your business — but you are not in business to help people on the highways, generally? A. No, sir, that's not our business. Q. Doing a good turn because you expect people to do a good turn to you, if you are in trouble? A. That's correct, not in wrecking business or repair business. Q. Your truck is equipped with that winch for use in your business? A. Yes, sir. Q. And you have no objection to their using that winch to help other people as a humanitarian thing? A. That's right. Q. You state you neither approve or disapprove of Mr. Hamlin's — what Mr. Hamlin did that night? A. That's right. Q. Because you don't know the circumstances? A. As I say, we have no specific instructions what to do in a case like that, I feel like very man I have got can reason himself out as to whether it would be good or not."
The single director who heard the case entered an award in favor of the claimant reading as follows: "Wherefore, based on the above and foregoing finding of fact, Hardy Couch Tractor Service, employer, and/or U.S. Fidelity Guaranty Company, insurer, are hereby authorized and directed to pay to Velesta B. Hamlin compensation at the rate of $25.50 per week beginning as of June 25, 1957, and continuing for a period not to exceed 400 weeks, compensation not to exceed the sum of $10,000. Employer and/or carrier are further to reimburse said widow the sum of $350 as funeral expenses."
The employer appealed to the superior court. The judge entered up a judgment affirming the award. It is to that judgment exception is taken.
There is as stated in the preceding statement of facts no issue as to whether the award was supported by evidence except that the plaintiff in error contends there was not sufficient competent evidence in the record to prove the deceased was when accidently injured performing a service in the course and scope of his employment.
It is elementary that an injury compensable under the Workmen's Compensation Act must be caused by an accident both arising out of and occurring in the course of the claimant's employment. Code (Ann.) § 114-102.
It is held by this court in Georgia Ry. Power Co. v. Clore, 34 Ga. App. 409, 410 ( 129 S.E. 799), quoting and approving the language of a Massachusetts case: "The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."
The same holding is phrased in slightly different language in U.S. Fidelity c. Co. v. Skinner, 188 Ga. 823 ( 5 S.E.2d 9).
So the claimant's right to compensation depends upon whether there was sufficient competent evidence in the record to show the deceased when fatally injured was engaged in work necessary or reasonably incident to the purpose of his employment.
The final test is "whose work was the servant doing and under whose control was he doing it?" Cooley v. Tate, 87 Ga. App. 1, 5 ( 73 S.E.2d 72).
We will first consider the sufficiency of the evidence to support the award upon the basis that lending assistance to fellow travelers upon the highway was within the scope and course of the deceased's employment. This is the theory upon which the award of compensation was based.
The employer testified that he was not in the wrecker business and that the aiding of the motorist was not a part of his business. But he evidently meant that rendering such service was a matter incidentally connected with and done for the benefit of his business. In this connection his testimony was that he thought it was good business, and that he gave his employees to understand that it was his policy to give such succor to fellow travelers on the theory of reciprocity in carrying on his business within 200 miles in each direction from Albany and that it was his thought that if he helped other motorists they would in turn lend aid to him.
The employer's own testimony clearly proved that he gave his employees to understand that they were to follow the practice of giving succor to motorists they found upon the highways in distress or need of aid. This was true though the employer did not recall the exact language of the discussion of the matter with the employees and left to their discretion the circumstances under which the help would be given. He testified that he even instructed as to the manner that the aid was to be given under certain circumstances; that the winch was to be used to pull the trucks out and that they were not to push other vehicles with his trucks. When the deceased stopped and began helping another driver with the adjustment of one of his tires, he was simply obeying instructions of his employer in regard to duties of his employment.
It is the employer's position that the claimant is not entitled to compensation because the deceased was just prior to the fatal accident engaged in an act not within the regular and customary routine of his employment, especially since the deceased was not expressly ordered to perform the act. However, the weight of authority presents a contrary view. "An injury suffered by an employee while voluntarily performing some service for his employer entirely outside of and unrelated to his regular employment is ordinarily not compensable as arising out of and in the course of such regular employment. According to many authorities, however, the employee is entitled to compensation as for an injury arising out of and in the course of his employment when such injury was received in the performance of work for his employer outside the scope of his usual duty, but which the employee had been expressly ordered to do by someone authorized to direct him as to his work; and even in the absence of orders, the employee has in many cases been held entitled to compensation for an injury sustained while doing an act outside the scope of his usual duties where such act was reasonably necessary or incidental to his regular work, particularly if an emergency existed." 58 Am. Jur. 738, § 231.
We are cognizant that the employer made plain that it was optional with an employee as to whether he would assist fellow travelers in distress and that he did not think that he could require one of his employees to render such service. It must be remembered that according to the employer's testimony the deceased had no specific duties, but was to do whatever "became handy" in connection with the employer's business. In these circumstances it is apparent that whether the employer was of the opinion that he could require his employees to give succor to fellow travelers, that under the terms of the deceased's contract of employment, as revealed by the employer's testimony, he did have the right to require such service of the deceased.
An employee who does work that his employer authorizes in carrying out the purpose of his employment, and which the employer considers beneficial to the business about which the employee is engaged to labor is within the scope of the latter's employment.
The fact that it was left to the deceased's discretion as to whether, when, and under what circumstances aid would be given to fellow travelers certainly would not exclude that service from the scope of his employment. In practically every task undertaken by a laborer there is a range of discretion as to what he should do in best accomplishing the purpose of his employment. For instance in driving a truck he must determine whether to pass other vehicles, whether to yield the right of way and whether and where to park the truck, as well as other matters incident to its successful operation. Fulmer v. Aetna Cas. Surety Co. 85 Ga. App. 102 ( 68 S.E.2d 180).
It is made to clearly and unequivocally appear from the employer's testimony that when the deceased, on the occasion of the fatal accident, left the employer's truck to assist a fellow traveler to repair a tire, he was performing a duty of his employment connected with his master's business.
On another theory the evidence supported the award. The deceased was at the very moment that he was struck down endeavoring to protect the employer's truck of which he was in charge, from damage. In Glens Falls Indem. Co. v. Sockwell, 58 Ga. App. 111 ( 197 S.E. 647), an employee who did not have permission to aid other travelers and had been engaged in assisting a fellow traveler, but at the moment when he was injured had returned to and was preparing to enter his employer's truck, was acting within the scope of his employment.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.