United States Fidelity & Guaranty Co. v. Skinner

• Decision Date: 14 September 1939
• Docket Number: 12699.
• Court: Georgia Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. et al. v. SKINNER.

5 S.E.2d 9

188 Ga. 823

UNITED STATES FIDELITY & GUARANTY CO. et al. v. SKINNER.

No. 12699.

Supreme Court of Georgia

September 14, 1939

Rehearing Denied Oct. 13, 1939.

Mandate of Supreme Court Conformed to Oct. 25, 1939.

Syllabus by the Court.

1. In its last analysis the instant case is one in which a company requested its employee to come to the office of the company at Savannah from his home in Macon, at the expense of and in an automobile furnished by the company, to confer about particular business of the company. The employee came to Savannah by such means in response to the request, and registered at a hotel. Before reporting to the company, the employee decided to go eighteen miles further to Tybee Beach where the company had no business, the sole purpose of making such trip being to get a sea-food dinner and see the ocean. On former trips to Savannah for such conferences the employee had, with acquiescence of the company, gone to Tybee Beach to get sea-food dinners and see the ocean. Held:

(a) The former practices of going from Savannah to Tybee Beach at the employer's expense, for the sole purpose of eating and to see the ocean, were optional as between the company and the employee, and, being so, did not amount to such custom as would by implication become binding as a part of the contract.

(b) Under liberal construction of the Georgia workmen's compensation act, Ga.L.1920, p. 167; Code, § 114-102 providing compensation for injury to employees 'by accident arising out of and in the course of the employment,' the act of dirving from Savannah to Tybee Beach for the purpose stated above was separate and apart from the employment, and the injury did not arise out of and in the course of the employment.

(c) The Court of Appeals erred in affirming the judgment of the superior court which sustained the finding of the Industrial Board awarding compensation to the claimant.

2. This is the first appearance in this court involving construction and application of the Georgia workmen's compensation statute in relation to compensation where the injury was the result of an accident to a traveling salesman while riding in an automobile furnished, and whose other traveling expenses were paid by the employer. The case is of such public importance that the judgment of the Court of Appeals may be reviewed by writ of certiorari. Central of Georgia Railway Co. v. Yesbik, 146 Ga. 620, 91 S.E. 873; Pinkerton National Agency v. Walker, 157 Ga. 548, 122 S.E. 202, 35 A.L.R. 557; Georgia Casualty Co. v. Martin, 157 Ga. 909, 122 S.E. 881; Maryland Casualty Co. v. England, 160 Ga. 810, 129 S.E. 75; Holliday v. Merchants' & Miners' Transportation Co., 161 Ga. 949, 132 S.E. 210; Atlantic Refining Co. v. Sheffield, 162 Ga. 656, 134 S.E. 761; Metropolitan Casualty Insurance Co. v. Huhn, 165 Ga. 667(6), 142 S.E. 121, 59 A.L.R. 719; Montgomery v. Maryland Casualty Co., 169 Ga. 746, 151 S.E. 363; Independence Indemnity Co. v. Sprayberry, 171 Ga. 565, 156 S.E. 230; United States Fidelity & Guaranty Co. v. Waymick, 173 Ga. 67, 159 S.E. 564; Thompson-Starrett Co. v. Johnson, 174 Ga. 656, 163 S.E. 745; Cooper v. Lumbermen's Mutual Casualty Co., 179 Ga. 256, 175 S.E. 577; Ocean Accident & Guarantee Corporation v. Farr, 180 Ga. 266, 178 S.E. 728; Maryland Casualty Co. v. Sanders, 182 Ga. 594, 186 S.E. 693; Continental Casualty Co. v. Haynie, 182 Ga. 608, 186 S.E. 683; Berkeley Granite Corporation v. Covington, 183 Ga. 801, 190 S.E. 8; American Mutual Liability Insurance Co. v. Curry, 187 Ga. 342, 200 S.E. 150; American Mutual Liability Insurance Co. v. Lemming, 187 Ga. 378, 200 S.E. 141. See Harwell v. Blue's Truck Line, Inc., 187 Ga. 78, 199 S.E. 739, relating to grant of certiorari where the construction of statutes is involved.

On June 19, 1937, W. B. Skinner, then residing in Macon, Georgia, was an employee of the Southern Fertilizer and Chemical Company of Savannah, Georgia. C. C. Maile, then residing in Atlanta, Georgia, was an employee of the same company. Both employees were traveling salesmen; and in addition to their respective monthly earnings, each was furnished an automobile and all traveling expenses, including costs of operating the automobile, and reasonable expenses for lodging and eating when away from home on business of the company. They were supposed to work during the week days and rest on Sundays. The office of the company customarily closed for week ends at two o'clock Saturday afternoon, and opened at 9 o'clock the ensuing Monday morning. W. D. Cook was vice-president of the company, in charge of the office at Savannah. Maile had authority over Skinner in the territory of their employment. Cook was accustomed to call Maile and Skinner to come to Savannah over week-ends to discuss sales features of the company's business. For such purpose Cook previously to Saturday, June 19, called for a conference with Maile and Skinner, to be held at Savannah during the ensuing week-end. In response to that call Maile left Atlanta on Saturday morning June 19, in the automobile furnished to him by the company. At Macon he was joined by Skinner at ten o'clock, and they proceeded to Savannah in the same automobile. They attended to some business along the way, and reached Savannah at 3 o'clock in the afternoon without having had lunch. They parked the car and registered at the Hotel Savannah, intending to go to Paris's place on the Savannah Beach road for a sea-food dinner, and afterwards to call on and confer with Mr. Cook. After registering at the hotel, they decided to go to Tybee Beach, eighteen miles from Savannah, and left in the car about four o'clock for Tybee Beach to get a 'sea-food dinner, and to see the ocean.' There was no office of the company at Tybee Beach, and they had no business there and no object in going there other than to get a 'sea-food dinner and see the ocean.' That was a reasonable and proper place, and so recognized by the company for them to go and take dinner at the company's expense. Maile was driving the car, and while running at the rate of about 55 miles per hour a tire blew out, causing the car to turn over and injure both occupants. Skinner died three days later. Cook had not heard of their arrival in Savannah, and did not expect them before Monday morning. They had intended making contact with Cook after dinner, and holding the conference as soon as his convenience would permit. They had previously made such trips to Tybee Beach at the company's expense for such purpose, which the company approved. They had also at week-ends when not engaged in the company's business been permitted by the company to use their respective cars about their homes for family or social purposes. The Board of Industrial Relations awarded compensation to the widow of Skinner under the workmen's compensation act, Code, § 114-102. On appeal the superior court sustained the award, and on writ of error the Court of Appeals affirmed that judgment. 59 Ga.App. 82, 200 S.E. 493. The case came to the Supreme Court on certiorari to the judgment of the Court of Appeals granted March 10, 1939.

Abrahams, Bouhan, Atkinson & Lawrence, of Savannah, for plaintiff in error.

Edward F. Taylor and Wm. H. Sanders, both of Macon, for defendant in error.

Neely, Marshall & Greene, of Atlanta, for parties at interest not parties to record.

ATKINSON Presiding Justice.

1. In other jurisdictions having statutes enacting workmen's compensation laws, not always identical with each other or with the statute of Georgia, there is a conflict in the decisions on the question of when an injury is compensable under the statutes under which compensation was claimed. The majority opinion rendered by the Court of Appeals in the instant case, relying on Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851, 853; Walker v. Speeder Machinery Corporation, 213 Iowa 1134, 240 N.W. 725, and similar cases, adopts and applies the view 'that a traveling salesman, away from home or headquarters, is in continuous employment, and that an accident to him arises in the course of his employment 'if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.'' [59 Ga.App. 82, 200 S.E. 495.] In the dissenting opinion Judge Sutton cites cases from other jurisdictions, which take a contrary view. In very able and elaborate briefs filed by the attorneys for the respective parties, many other cases are cited which show the conflict of authority. The dissenting opinion by Judge Sutton calls attention to such conflict of decisions, and deems the better view to be with those decisions that run counter to the views expressed by the majority of the Court of Appeals. None of the decisions in foreign jurisdictions are binding on this court, and no effort will be made to distinguish or reconcile any differences between them. Judge Sutton says, in part:

'Before compensation can be awarded legally to a claimant for an injury by accident, it must appear that the accident arose out of and in the course of the employment. Code, § 114-102 * * * Injuries sustained by a traveling salesman while traveling by automobile from one town to another on business for his employer are compensable under the workmen's compensation law. New Amsterdam Casualty Co. v. Sumrell, supra [30 Ga.App. 682, 118 S.E. 786]; Globe Indemnity Co. v. MacKendree, 39 Ga.App. 58, 146 S.E. 46; Employers' Liability Assurance Corporation Limited v. Montgomery, 45 Ga.App. 634, 165...