Employers' Liability Assur. Corp. v. Montgomery

• Decision Date: 29 July 1932
• Docket Number: 21906.
• Parties: EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, et al. v. MONTGOMERY.
• Court: Georgia Court of Appeals

165 S.E. 903

45 Ga.App. 634

EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, et al. v. MONTGOMERY.

No. 21906.

Court of Appeals of Georgia, Second Division

July 29, 1932

Rehearing Denied Sept. 26, 1932.

Error from Superior Court, Haralson County; J. R. Hutcheson, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. W. J Montgomery, claimant, against the Employers' Liability Assurance Corporation, Limited, insurer, and another. To review a judgment of the Superior Court, affirming a decision of the Industrial Commission in favor of the claimant, the insurer and employer bring error.

Judgment affirmed.

H. J McBride, of Tallapoosa, for plaintiffs in error.

Wm. W Mundy, of Cedartown, for defendant in error.

JENKINS P.J.

This was a claim for compensation on account of the death of the claimant's husband. It was undisputed that the decedent met his death when the automobile in which he was traveling in the performance of his duties as a traveling salesman for the defendant employer overturned. The right of the claimant to compensation was disputed upon two grounds; First, that the decedent was an independent contractor, and not a servant of the employer; and, second, that his death was the result of his own misconduct in operating the automobile while intoxicated and at a greater rate of speed than that authorized by law. The sole commissioner hearing the case, in his award, after narrating a portion of the evidence adduced before him, found, "as a matter of fact," that the decedent was "sober at the time of the accident" that he was "an employee" of the defendant company "and at the time of the accident which caused his death he was in the course of said employment"; that the accident which resulted in the death of the decedent "was an accident that arose out of and in the course of his employment, and that said accident was due to a blow-out of his left front tire." The commissioner further found that the defendants had not sustained or proved the contention that the decedent was exceeding the state speed laws while under the influence of intoxicating liquors. The Industrial Commission, on review, approved the findings and award of the sole commissioner, and this judgment was affirmed by the superior court on appeal. The employer and the insurance carrier now except to the latter judgment, contending that the award of the sole commissioner as entered was not accompanied with a statement of the findings of fact upon which it was based, as required by the Workmen's Compensation Act (Laws 1920, p. 167, as amended), Held:

1. "An injury arises 'in the course of employment,' within the meaning of the Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. An accident arises 'out of' the employment, when it arises because of it, as when the employment is a contributing proximate cause." These conditions must concur before the act can apply. New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786.

2. While it has been held that in a proceeding before the ...