Gay v. Etna Cas. & Sur. Co

• Decision Date: 17 February 1945
• Docket Number: No. 30741.,30741.
• Parties: GAY. v. ETNA CASUALTY & SURETY CO. et al.
• Court: Georgia Court of Appeals

33 S.E.2d. 109

GAY.

v.ETNA CASUALTY & SURETY CO. et al.

No. 30741.

Court of Appeals of Georgia,

Division No. 2.

Feb. 17, 1945.

Syllabus by the Court.

Under the undisputed facts of this case, a finding was demanded that the injury complained of did not arise out of and in the course of the employment within the meaning of the Workmen's Compensation Act, and, consequently, the award made by the State Board of Workmen's Com pensation was not authorized, and the judge of the superior court did not err in setting the award aside.

FELTON, J., dissenting.

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

Proceedings under the Workmen's Compensation Act by Nancy Gay, claimant, opposed by the Aetna Casualty & Surety Company, insurance carrier, and another. To review a judgment of the superior court setting aside an award of the State Board of Workmen's Compensation in favor of claimant, the claimant brings error.

Affirmed.

Crenshaw, Hansell & Ware, of Atlanta, for plaintiff in error.

Haas, Lyons & Hurt, of Atlanta, for defendants in error.

SUTTON, Presiding Judge.

Miss Nancy Gay filed a claim for compensation with the State Board of Workmen's Compensation against her employer, E. K. Partridge, Inc., and the insurance carrier, Aetna Casualty & Surety Company, on account of an injury sustained by her and which she claimed arose out of and in the course of her employment. The single director found in favor of the claimant and awarded her compensation; and, on appeal, this finding and award was approved by a majority of the board, with one director dissenting. The superior court reversed the award, and the claimant excepted..

The only question presented for determination is whether or not the injury sustained by the claimant arose out of and in the course of the employment.

The claimant testified that she was employed on the third floor of her employer's building as a seamstress, and between 9 and 10 o'clock on the morning of February 8, 1944, she started down the steps on the inside of the building and fell three or four steps; that she was leaving the premises because the motor had broken down and she did not have any work to do; that she had been excused by the forelady for about three hours for lunch; that she worked by the piece; that Mrs. Herron was with her and that the reason they were going out was because the machine was broken down and they were going to takelunch and they asked the forelady to excuse them; that they had changed from their work clothes to street clothes before they went out; that she was fifty-seven years old, and was making $21 a week.

Mrs. Carl Copeland testified that she was the general manager of the sewing department and had supervision over the claimant; that when one department breaks down that closes them down until it is cleared up, and on the claimant's line the machine had broken and that instead of staying in the building, the employees asked if they might go out and she gave them permission to do that and told them to come back when the work was ready, which would be about a quarter to one; that she did not have any work for them to do on the premises; that where the accident happened was not on the third floor but there was no way to get out of the building except this stairway, which was the regular way out; that Mrs. Herron and the claimant did not say they were going out for lunch, but asked if they might stay out for lunch as they were going out and she told them she thought it would be all right.

Mrs. Frances J. Herron testified that she worked in the same department with the claimant, and that they left the place together on the morning of the claimant's injury; that they did not have any work to do, because the motor was broken down, and they were excused to come back after lunch; that they were not excused because they wanted to do a personal errand, but that they did not have any work to do; that while she was out she thought she would go to the post office and mail a letter and she would not be on the company's business.

We are of the opinion, as the trial judge was, that the uncontroverted facts in the present case bring it squarely within the rulings made in Aetna Casualty & Surety Co. v. Honea, 71 GaApp. ----, 31 S.E.2d 421, 423, and this case is controlled by the decision in the Honea case and the cases therein cited. It is well-settled law that before compensation can be legally awarded to a claimant under the terms of the Workmen's Compensation Act, the injury complained of must have been occasioned by an accident arising out of and in the course of employment. Code, § 114-102. And the burden in such a case is on the claimant to prove that the injury for which compensation is sought arose out of and in the course of the employment. In the Honea case, the claimant was injured during her lunch time, while going from the room on the fourth floor of the building where she worked to the second floor of the same building to have her hair dressed. The noontime lunch period of forty-five minutes was hers to do with as she chose. She could go out of or remain in the building during that time, as she pleased. She was then on her own time, and not on her employer's time; and it was held that her injury was not compensable, as she was not about her master's business when injured and the accidental injury did not arise out of and in the course of her employment. The evidence in the present case is set out above and the uncontroverted facts show that the claimant's injury did not arise out of and in the course of her employment within the meaning of the Workmen's Compensation Law. She was a seamstress and the machine on the third floor of the building where she worked had broken down and she had no work to do; she had been excused, at her own request, by the manager of that department for a period of about three hours for lunch; and she was accidentally injured during that period while going down the steps on her way out of the building. At the time of the injury the claimant was not doing anything in furtherance of her employer's business, but had been excused for a period of three hours and during which time she could eat lunch and go where she pleased. She was on her own time when injured, and was not engaged in work for her employer. It would make no difference whether the claimant was injured during a rest period of thirty minutes, or during her lunch period of forty-five minutes, or during a lunch time and rest period of three hours, if the claimant was injured while on her own time and while not...