Indemnity Ins. Co.v.Westmoreland

Court of Appeals of GeorgiaMay 16, 1956
93 Ga. App. 888 (Ga. Ct. App. 1956)
93 Ga. App. 88893 S.E.2d 193


DECIDED MAY 16, 1956.

Workmen's compensation. Before Judge Paschall. Bartow Superior Court. February 2, 1956.

Currie McGhee, for plaintiff in error.

Pittman Greene, contra.

Since the evidence authorized the finding that the deceased employee, a truck driver, was, when killed, driving the truck of his employer on a mission purely personal to himself, that of returning from his boarding house, where he had been to lunch and where he had taken the truck of his employer without authority, the award against the claimant was authorized, and the superior court erred in reversing it.

DECIDED MAY 16, 1956.

Defendant in error, Mrs. Carrie M. Westmoreland, brought a death claim before the Board of Workmen's Compensation against Barker Brothers Construction Company as employer and Indemnity Insurance Company of North America, insurance carrier, plaintiffs in error, on account of the death of the employee, her son, Chafin Westmoreland, contending that she was dependent on the deceased employee, and that his death was the result of an accident arising out of and in the course of his employment. Upon the hearing it appeared from the evidence that the employee was working for the employer as a truck driver, and that he was killed in a collision with another motor vehicle while returning to his place of employment after having driven the company truck to his boarding house for lunch and back to the point of collision. The record discloses no other mission on which the employee was engaged at the time of his death. It further appears that all employees had been instructed not to take the trucks off the job, and that the employer had never known of the deceased driving one of the company trucks to his boarding house at noon time to get lunch, but had on one or two occasions "caught him over at the ice plant" and had instructed him not to do that, as they had water on the job. There was testimony that one or two other employees, who were hauling materials in a route which passed by their houses, were given permission to stop the trucks at the side of the road and go to their houses to eat, but it was required that trucks not be used outside the scope of company business. The man with whom the deceased employee boarded had worked for the same employer for about a month, and testified that during that time he and Westmoreland each came home for lunch in a truck; that he thought Mr. Barker had seen him using a truck at noon; that he had been given no instructions on this point and did not know whether or not Westmoreland had received any. The accident in which the employee was killed occurred at approximately the end of the lunch-hour period as a result of a collision caused by his failure to stop at a stop sign. The truck which he was driving had defective brakes. The position of the accident was on the route which the employee would normally travel from the house to his work, and occurred at a time when he had just finished his lunch and would normally be expected to be back for work.

There was also testimony by the claimant that she was separated from her husband and depended upon her son for support, which testimony was sought to be impeached by prior written statements given by her to the effect that, since her son had left home in April preceding July 22, 1954, when he was killed he had given her no money, it being contended that no dependency or support was shown for the 13 weeks preceding the accident. The claimant's testimony was to the contrary, she stating that her son had been to see her 3 times during this period, and had given her $10 on 2 occasions and $20 on one.

The deputy director hearing the case found that the employee was involved in an accident while riding in one of the employer's trucks at approximately 12:30 p. m.; that this was the first time Mr. Barker knew Mr. Westmoreland was driving a company truck over this route; that at the time of the collision the employee was driving the truck on his lunch hour and away from his place of employment, on his own time, and without the owner's consent. He also made a finding of fact that the claimant had failed to carry the burden of proving dependency and the burden of proving that the accident arose out of and in the course of the employment.

A direct appeal was taken to the Judge of the Superior Court of Bartow County, who, in a judgment reversing the award, found as follows: "That the single director's findings were based in part upon specific findings unauthorized by the evidence which influenced the acceptance of one theory of the case rather than the other; thus, the findings are affected by material conclusions not authorized by the evidence." Error is assigned on this judgment.

All parties recognize the well-worn rule that the award, if supported by any competent evidence, will not be set aside. It is, however, contended, under the authority of Sisson v. American Mutual Liability Ins. Co., 71 Ga. App. 284 ( 30 S.E.2d 501), that where an award against the claimant is influenced at least in part, by specific findings of fact not authorized by the evidence, it must be set aside, and that for this reason the judgment of the superior court is correct. We agree with the principle of law, but have difficulty applying it to this case, so far as it affects the finding that the accident did not arise out of and in the course of the employment. There is sufficient competent evidence to authorize a finding by the board that the employee had no authority to use the company truck during his free period for lunch; consequently, the theory would not be tenable that the employee, being in the truck, was constructively "on the premises" of the employer. The fact that he was using a company truck is immaterial, and the situation is the same as though he had walked or ridden in his own car to his home during the half hour given him as free time between noon and 12:30. That he was returning from his home in a direction he would normally take to go to work at noon puts him in the same position as one who departs from his home in the morning and sets out for work. The responsibility of an employer must begin and end somewhere, and this State has never applied "portal to portal" liability to workmen's compensation cases. In Travelers Insurance Co. v. Smith, 91 Ga. App. 305 ( 85 S.E.2d 484), an effort was made to reconcile "preparation for work" cases with "lunch hour" cases, the former being, in general, more liberal in permitting recovery than the latter. In one of the earliest of these, Jackson v. Lumberman's Mutual Casualty Co., 33 Ga. App. 35 ( 125 S.E. 515) we find the Industrial Commission "thoroughly committed to the principle that a reasonable time must ensue after an employee reaches an employer's premises, . . . during which time an accident occurring shall be construed as arising out of and in the course of the employment." (Italics ours.) In the Smith case, supra (p. 311), the accident occurred after the premises had been reached by one returning to work at the end of his lunch hour, and this court, upholding the reversal by the superior court of the award denying compensation, stated: "But where he is returning to his employment and is injured at a place and time where it is necessary for him to be in order to get back to his work station at the time set for him to recommence his duties, the situation is exactly the same as though he were arriving in the morning preparatory to undertaking his day's duties." (Italics ours). No doubt this language misled the judge, to whom the case was appealed, but our meaning was that, where one, arriving on the master's premises, at a time and place necessary for him to commence or recommence his duties, or to do things necessary to prepare him to undertake such duties, there is no difference in fact between the employee who has arrived in the morning and one who has arrived after his lunch hour, which was free time spent by him on his own affairs. That this ruling could not be extended so as to reverse the award of the board denying compensation such as here, is amply illustrated by Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 ( 156 S.E. 230), a "deviation from employment" case wherein the Supreme Court, reversing the Court of Appeals, held that there was sufficient evidence in the record to authorize the judgment of the board denying the claim. The time during which an employee normally journeys from his home to his place of employment, either at morning or noon, is, in the absence of special circumstances his own time. The director here correctly found that the accident did not arise out of and in the course of the employment, and denied compensation on that ground. Accordingly, it is unnecessary to decide whether or not the issue as to dependency was influenced by findings of fact not authorized by the evidence, as contended.

The judge of the superior court erred in reversing the director's award denying compensation.

Judgment reversed. Gardner, P. J., and Carlisle, J., concur.