American Mut. Liability Ins. Co. v. Curry

• Decision Date: 15 November 1938
• Docket Number: 12249.
• Citation: 200 S.E. 150,187 Ga. 342
• Parties: AMERICAN MUT. LIABILITY INS. CO. et al. v. CURRY. [*]
• Court: Georgia Supreme Court

200 S.E. 150

187 Ga. 342

AMERICAN MUT. LIABILITY INS. CO. et al. v. CURRY. ^[*]

No. 12249.

Supreme Court of Georgia

November 15, 1938

Rehearing Denied Dec. 8, 1938.

Certiorari from Court of Appeals.

Proceeding under the Workmen's Compensation Act by Carrie Curry claimant, for the death of Dorsey Curry, her husband, opposed by the Central Cotton Oil Company, employer, and the American Mutual Liability Insurance Company, insurer. To review a judgment of the Court of Appeals, 56 Ga.App. 855, 194 S.E 233, affirming a judgment affirming an award of the Department of Industrial Relations, for claimant, the employer and insurer bring certiorari.

Reversed.

RUSSELL C.J., dissenting.

Syllabus by the Court.

1. On a claim for compensation under the Georgia workmen's compensation act (Ga.L.1920, p. 167, Code, § 114-101 et seq.), for injury to an employee arising out of and in the course of his employment, the finding of the director, if authorized by the evidence, is final, and will not be set aside by the court. Maryland Casualty Co. v England, 160 Ga. 810, 129 S.E. 75. But if the finding is not authorized by the evidence, or a different finding is demanded by the evidence, it may be set aside by the courts.

2. In the instant case the gratuitous and permissive riding on the vehicle of the employer, by the employee in going forth and back between his home and his place of work, by mere favor not in furtherance of the employer's business, was not such as to justify the conclusion that a right to do so became by implication a part of the contract.

3. The evidence demanded a finding by the director that the injury did not arise out of and in the course of the employment, and that compensation be denied. The Court of Appeals erred in affirming the judgment of the superior court, which affirmed the director's finding awarding compensation.

Dorsey Curry, an employee, while riding on an automobile truck of his employer, Central Cotton Oil Company, late in the afternoon of July 14, 1936, fell off the vehicle while passing under railroad-tracks in Macon, and sustained injury to his head, from which he died on the next day. A claim for compensation was filed by Carrie Curry, his widow, against the employer and insurance carrier, claiming that the injury occurred in the course of Curry's employment. The award by the director of the Department of Industrial Relations was in favor of the claimant, and was affirmed by the board and by the superior court on appeal. The judgment of the superior court was affirmed by the Court of Appeals, and on petition of the employer and the insurance carrier certiorari was granted by the Supreme Court. The controlling question for decision is whether the injury and resulting death of the employee arose out of and in the course of his employment. The oil company operated a plant in the City of Macon, employing a large number of persons of whom Dorsey Curry was one. These employees lived in different parts of the city and the vicinity. The company also operated an automobile truck for transportation of its goods to and from its plant. Not having a place of storage for the truck at the plant, it procured storage facilities at a garage in the city about one and a half miles from the plant. Curry lived in the city at 122 Tatnall Street Lane, about one file from the garage, and about the same distance from the intersection of Poplar and Fifth Streets. For a number of years it had been the custom for the company to cause the truck to be driven from the garage via the intersection of Poplar and Fifth Streets to the plant, at and from which place it was used in the company's business during the day, and in the evening, after close of the day's work, to be returned by the same route to the garage. During such time any of the employees who were ready and desired to do so when the truck was moving to and from the garage were permitted to ride on the truck in going to and from their homes. Any who were not ready or did not desire to ride the truck either walked or procured other means of conveyance. Dorsey was permitted to ride the truck in these circumstances, his place of contact being at the garage or at the corner of Poplar and Fifth Streets. Between these points and his home he walked. On the day of his injury the driver carried Dorsey to his home on account of his injured condition. Dorsey was employed to work at the plant for no specified time, but was paid weekly. Some weeks he made full time. In others he made three days. His wages varied according to the particular work. In the week of the injury his wage was $1.25 per day. At the hearing before the director four witnesses were introduced by the claimant. The first was the claimant. The second was the physician. The material parts of their testimony are substantially embraced in the foregoing narrative. The narrative also embraces the substance of some of the testimony of the other two witnesses. Excerpts from their testimony are set forth as follows:

Lewis Smith testified: 'What was the truck used for? Hauling around the plant and transfer stuff out of town and delivery. Where did the Central Cotton-Oil Co. keep the truck at night? Down on Broadway at the garage * * * near the Southland Hotel. * * * Does one of the employees of the Central Cotton-Oil Co. drive the truck? Yes, sir. * * * How long had they had this particular truck? I couldn't say and give the date. They had another truck * * * for similar purposes before they got this one? A. Yes, sir. How long had they been using the truck in connection with the business? * * * A Ever since I have been with them. * * * How long had you been with them? I have been with them ever since September, 1918. * * * Did the driver of that truck live here in the city? Yes, sir. Did the other employees, or the majority of them live here in the city? The majority of them live here in the city. I think all of them. They lived, some in East Macon and some in South Macon, and in different sections of the city? Yes, sir. All of the employees get off from work in the afternoon at the same time? Yes, sir. They left the plant at the same time? Yes sir. Would all of them start to work in the morning at the same hour? Yes, sir. And you were one of them? Yes, sir. How long had the Central Cotton-Oil Company been in the habit of leaving the truck or trucks at the Southland Garage? I couldn't say. I didn't ride out often. I would walk out most of the time. * * * What was the distance from the Southland Garage down to the Central Cotton Oil Company Plant or place where these men worked? Well, I judge about a mile and a half, something like that, or a mile and a quarter, something like that, as near as I can judge at it. Since you had been with the company from 1918, had it made a practice of bringing the truck in to town and putting it in a garage at night? Yes, sir, unless something would happen to it. Would it bring the different employees in at night? Yes, sir. Did it carry them back in the morning? A. Yes, sir. From what point? From Poplar and Fifth Street mostly in the morning; and catch it at the garage, and some caught it at Popular and Fifth. Is Poplar and Fifth Streets here in the city? Yes, sir. You would say from that point to the plant is about a mile and a half? Something like that. Do you know or did you know Dorsey Curry? Yes, sir. Was he one of the employees of the Central Cotton Oil Company? Yes, sir. How long had he been employed there? A good while, I don't know when he started. Would you say he had been there for a good many years? Yes, sir. Was Dorsey one of the men that caught the truck in the morning on Poplar Street, did he usually catch the truck? Yes, sir, usually caught the truck at the garage or Poplar Street in the evening when he worked at night. Curry would go to the garage or caught the truck on Poplar Street? Yes, sir. * * * Had he been catching this truck during the entire time he had [been] with them? Yes, sir, he had been catching the truck. About how many men would they allow to get on the truck? I don't know, sir; several of them. All of the employees didn't ride; some of the East Macon crowd didn't ride all the time; sometime they would ride. * * * [Cross-examination] Now, you said in this statement 'the company just permits the employees who live in the direction the truck was going, to ride part way if they want to.' Yes, sir. That is right? Yes, sir, they don't take any of us home. 'The company does not agree to carry the employees to or from work, but just lets them ride if they want to.' That is the truth about it? Yes, sir, we ride when we want to. They don't tell us to ride. The truck didn't go out of its way to town to take any of the employees, and it did not take any of them to their home? Yes, sir. In other words, as I understand your testimony, you men who had been working at this place for a long period of time knew that the company kept its truck in a garage over on Broadway near Poplar Street? Yes, sir. You knew that that truck left this garage about 6:30 in the morning? Yes, sir. You know that if you got to the garage or if you got to the corner of Poplar Street and Fifth Street around six-thirty in the morning and the truck passed, it was all right for you to get on and ride? Yes, sir. If you happened to be there and could get on the truck, it was all right with the company for you to ride? A. Yes, sir. And then if you didn't happen to be there or if you missed the truck, why they had to walk to their work? Yes, sir. And then in the afternoon you quit work at 5:30? Yes, sir. And then is the time after five-thirty the truck left the oil mill plant to go back to this garage? Yes, sir. And if you happened to be one of those who lived in the direction the truck was going, the company...