American Hardware Mut. Ins. Co. v. Burt

• Citation: 120 S.E.2d 797,103 Ga.App. 811
• Decision Date: 06 June 1961
• Docket Number: No. 2,No. 38780,38780,2
• Parties: AMERICAN HARDWARE MUTUAL INSURANCE COMPANY v. Maude I. BURT, Guardian, etc
• Court: United States Court of Appeals (Georgia)

Page 797

120 S.E.2d 797

103 Ga.App. 811

AMERICAN HARDWARE MUTUAL INSURANCE COMPANY v. Maude I. BURT, Guardian, etc.

No. 38780.

Court of Appeals of Georgia, Division No. 2.

June 6, 1961.

Grady Burt, a minor employee of G. G. Robinson, doing business as Waverly Pharmacy, Filed a claim under the Workmen's Compensation Act seeking compensation resulting from an accident, contending that the accident arose out of and in the course of his employment. Maude I. Burt was appointed guardian of Grady Burt for the purpose of the claimant's proceeding before the Workmen's Compensation Board. The evidence before the Board was substantially without conflict that the claimant was employed as a delivery boy by George G. Robinson, doing business as Waverly Pharmacy. As one of the conditions of employment, the claimant's mother required that the claimant be allowed to come home for a warm supper. The employer agreed and allowed the claimant to use the drugstore's motor scooter for this purpose. The claimant's supper hour was at the convenience of the employer and the time varied from day to day because this time period was the rush hour to deliver prescriptions. The employer testified that the claimant was 'available for taking and picking up or making deliveries either on his way home or coming back' from supper. After working for a period of time, the claimant left the employment for a short time and then returned. The claimant's mother testified that in discussing the re-employment of the claimant, the employer said the employment was upon the same basis as before. However, the employer testified that the claimant returned as a worker inside the store, but sometimes the claimant made deliveries. The claimant continued to use the motor scooter to go home for supper. The claimant was injured in an accident while heading on a direct route home to supper. Upon a hearing before a single director of the Workmen's Compensation Board, the director found in favor of the employer. Upon appeal, the full board found in favor of the claimant. On appeal to the Superior Court of muscogee County, the award of the Workmen's Compensation Board was affirmed. From such ruling the employer appeals to this court.

Swift, Pease, Davidson & Chapman, H. B. Pease, Columbus, for plaintiff in error.

Vincent P. McCauley, Columbus, for defendant in error.

Syllabus Opinion by the Court

Held:

FRANKUM, Judge.

The sole question is whether the claimant was injured in an accident arising out of and in the course of his employment within the meaning of Code Ann. § 114-102. The full board of directors found in favor of the claimant. This court must look to see if there is any evidence to support such award. Code Ann. § 114-710. London Guarantee & Accident Co. v. Herndon, 81 Ga.App. 178, 58 S.E.2d 510; Employers Ins. Co. of Ala. v. Bass, 81 Ga.App. 306, 58 S.E.2d 516.

The terms 'arising out of' and 'in the course of' employment are not synonymous. The former phrase refers to when the accident occurs within the period of employment, at a place where the employee reasonably may be in the performance of his work, while the latter phrase refers to when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury from the accident. Hartford Accident & Indem. Co. v. Cox, 101 Ga.App. 789, 115 S.E.2d 452; Aetna Casualty & Surety Co. v. Honea, 71 Ga.App. 569, 31 S.E.2d 421; New Amsterdam Cas. Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786.

Counsel for the plaintiff in error argued strenuously that the instant case falls within the classification of the so-called 'lunch hour' classification cases exemplified by Ocean Accident & Guarantee Corp. v. Farr, 180 Ga. 266, 178 S.E. 728; Aetna Casualty & Surety Co. v. Honea, 71 Ga.App. 569, 31 S.E.2d 421; Austin v. General Acc. Fire & Life Assurance Corp., 56 Ga.App. 481, 193 S.E. 86; Ralph v. Great American Indem. Co., 70 Ga.App. 115, 27 S.E.2d 756. It is important to observe that all of the above cases were ones where the Workmen's Compensation Board found against the claimant, and accordingly, the court was perusing the record to see if any evidence was adduced at the hearing before the Workmen's Compensation Board to support the award, while in the instant case the board has found for the claimant. Accordingly, the same rule applied in this appeal.

The evidence in this case establishes without dispute: (1) that the claimant's right to return home for his supper was an express prerequisite to and incident of his contract of employment; (2) that the employer retained control of the employee during this period for the purposes of (a) designating the time when he could leave, which depended on the trade in the store, and (b) making deliveries while en route from the drugstore to his house when it was desirable, thus retaining a right to control both the time and manner of his trip home for supper, and (3) the employer furnished the transportation.

The general rule that lunch hour cases are not compensable is founded on the proposition that during the lunch hour the employee turns aside from his employment for his own purposes, and the master-servant relationship is suspended. As pointed out in Travelers Insurance Co. v. Smith, 91 Ga.App. 305, 85 S.E.2d 484, it is the fact situation involved and not the mere designation of the time as 'lunch hour' which controls; the theory...