Wicker v. Fidelity & Cas. Co. of N.Y.

• Decision Date: 23 January 1939
• Docket Number: 27210.
• Citation: Wicker v. Fidelity & Cas. Co. of N.Y., 1 S.E.2d 464, 59 Ga.App. 521 (Ga. App. 1939)
• Court: Georgia Court of Appeals
• Parties: WICKER et al. v. FIDELITY & CASUALTY CO. OF NEW YORK et al.

1 S.E.2d 464

59 Ga.App. 521

WICKER et al. v. FIDELITY & CASUALTY CO. OF NEW YORK et al.

No. 27210.

Court of Appeals of Georgia, Division No. 2.

January 23, 1939

Rehearing Denied March 1, 1939.

Syllabus by the Court.

McCullar & McCullar, of Milledgeville, for plaintiffs in error.

Harris & McMaster, of Sandersville, M. J. Yeomans, Atty. Gen O. H. Dukes, Asst. Atty. Gen., and E. J. Clower, of Atlanta for defendants in error.

SUTTON Judge.

The claim for compensation in this case, under the workmen's compensation law, Code 1933, § 114-101 et seq., was denied by a single director of the Industrial Board, and his award was approved by the full board, and was then affirmed by the superior court. The claimant excepted. The award of the single director is as follows: "Mack Wicker sustained an accident while driving a truck on January 19, 1934, and as a result thereof died the following day. Claim was brought first by his parents as partial dependents, and then by two minor brothers. Wicker was driving a truck belonging to B. A English, which was engaged in hauling overburden and clay for the Champion Coated Paper Company in Washington County, Georgia. After completing the day's work he started to return to Sandersville where the truck was kept for the night, and which was some thirteen or fourteen miles away. Fred Battle, who was on the truck with Wicker, testified that after leaving the premises of the Champion Coated Paper Company Wicker stopped the truck at the Olive Hill church and remained there for about thirty minutes, and then made a second stop at the Poplar Springs church. Wicker then proceeded towards Sandersville. Just after he reached the city limits he lost control of the truck which jumped a ditch and ran into the front yard of Pierce Woods' house and then turned back towards the road striking the same ditch again. It was drizzling rain and almost dark when the accident occurred. There would have been ample time had the two stops not been made to have reached Sandersville before dark. The evidence of Fred Battle is corroborated by that of Luther Innis, who kept time for the trucks that were engaged in hauling for the Champion Coated Paper Company. On the day of the accident he left the premises of the Champion Coated Paper Company about a half an hour after Wicker left and passed him at the Olive Hill church. There was another truck there also. Wicker and two or three other drivers were standing around talking. He also testified that Wicker had had ample time to get to Sandersville by the time that he saw him. Wicker voluntarily stepped aside from his employment in stopping at the two churches. These stops had no connection with his employment and delayed him in getting to Sandersville, where he was supposed to take the truck. The accident occurred while he was proceeding along the direct route that he was supposed to travel, but at a time when he should have and could have reached his destination, except for the fact that he voluntarily stepped aside from his employment. The Director therefore finds that the accident did not arise out of and in the course of the employee's employment, and the claim for compensation is denied and the case is dismissed for this reason. No findings are made on the several other issues raised, it not being required that findings of fact be made on all issues where compensation is denied on one or more issues."

It will be seen from this award that the claim for compensation was denied solely on the ground that the deceased Mack Wicker had stepped aside from his employment, and that the accident causing his death did not arise out of and in the course of his employment. Was such a...