Fid. & Cas. Co. Of N.Y. v. Barden

• Decision Date: 13 May 1949
• Docket Number: No. 32443.,32443.
• Court: Georgia Court of Appeals
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK et al. v. BARDEN.

79 Ga.App. 260

54 S.E.2d 443

FIDELITY & CASUALTY CO. OF NEW YORK et al.

v.BARDEN.

No. 32443.

Court of Appeals of Georgia, Division No. 1.

May 13, 1949.

Syllabus by the Court.

Where one goes upon the premises of an employer to which the public is invited, departs for a short distance, and is invited back by an employee for the purpose of negotiating the sale of a pistol, and while exhibiting the pistol to the employee it is accidentally discharged and kills the husband of the claimant, an employee not participating in the negotiations, the State Board of Workmen's Compensation is authorized to find that the death arose out of and in the course of employment and the superior court did not err in affirming the award.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Proceeding under the Workmen's Compensation Law by Mrs. Herbert Barden, claimant, opposed by Cotton Patch, employer, and Fidelity & Casualty Company of New York, insurance carrier. To review a judgment of the Superior Court affirming an award of the State Board of Workmen's Compensation granting compensation, the employer and insurance carrier bring error.

Affirmed.

Mrs. Herbert Barden filed her claim with the State Board of Workmen's Compensa-against the Cotton Patch, employer, and the Fidelity & Casualty Company of New York, the insurance carrier, seeking to recover for the death of her husband resulting from a pistol wound received on February 7, 1948, while in the employ of the Cotton Patch, a combination drive-in and restaurant located on North Avenue in Atlanta, Georgia. The only question before this court is whether the injury received by the deceased, Herbert Barden, arose "out of" his employment. It appeared from the evidence adduced upon the hearing before a single director that the deceased was employed as a "curb boy" or "car hop", whose duties consisted of serving customers in their cars on the defendant's premises. On Saturday night on the date of the injury the deceased was in the performance of his duties, standing in line with the other curb boys awaiting his turn to serve prospective customers; that Billy Marsh and one McClure, who was a former employee of said establishment, came on the premises and entered the restaurant. A short time later Marsh and McClure came out of the restaurant and Marsh was carrying a revolver in his hand. They left the premises of the defendant and started to cross North Avenue in front of said establishment when F. C. Peacock, another curb boy and co-employee of deceased, called out to Marsh and asked him if he wished to sell the gun. Both Marsh and McClure came back on the premises and began talking to Peacock, who was standing in line in rotation to serve car customers several boys ahead of the deceased. Marsh holding the pistol in his hand was demonstrating it to Peacock. The deceased was stand-ing a full two yards behind Marsh, taking no part in the conversation. Marsh snapped the trigger twice at random and on the third snap the gun fired; the bullet therefrom striking deceased who died shortly thereafter. Both Peacock and Buice, curb boys, who were present at the time of the accident testified that the deceased was an innocent by-stander and was in the performance of his duties at the time of the injury. The evidence was undisputed that beer was sold by the establishment and consumed on the premises; that police officers, while off duty from the Atlanta Police Department, were employed by the defendant on Friday, Saturday, and Sunday nights to patrol the premises to prevent any...