Gen. Acc. Fire & Life Assur. Corp. v. Prescott

• Decision Date: 11 October 1949
• Docket Number: No. 32682.,32682.
• Citation: 56 S.E.2d 137,80 Ga.App. 421
• Court: Georgia Court of Appeals
• Parties: GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited.‘ v. PRESCOTT.

56 S.E.2d 137

80 Ga.App. 421

GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited.‘

v.PRESCOTT.

No. 32682.

Court of Appeals of Georgia, Division No. 2.

Oct. 11, 1949.

Rehearing Denied Nov. 9, 1949.

Workmen's Compensation proceedings by Nina Prescott against the General Accident Fire & Life Assurance Corporation, Limited, and others to recover death benefits for the death of her husband.

The Superior Court, Laurens County, J. Roy Rowland, J., affirmed an award of compensation and opponents appealed.

The Court of Appeals, Townsend, J., affirmed the judgment and held that the findings that the injury arose out of and in the course of the employment, and that the intoxication of the employee was not a proximate cause of the accident were sustained by evidence.

Syllabus by the Court.

1. "Where the employee breaks the continuity of his employment for purposes of his own and is injured before he brings himself back into the line of employment, his injury does not arise out of or in the course of his employment, but where the personal mission has been accomplished and the employee is once more engaged in the duties of his employment, the injury arises out of and in the course of employment." Wicker v. Fidelity & Casualty Co., 59 Ga. App. 521, 1 S.E.2d 464.

2. The burden was upon the employer to establish the fact that the death of the claimant's husband was due to his intoxication. It is not sufficient to authorize a finding that the employee's death is due to intoxication to show merely that he was intoxicated. It is essential, in order to constitute a bar to compensation, that his death was caused by his intoxication. The intoxication must have been the proximate cause of his death. Shiplett v. Moran, 58 Ga.App. 854, 856, 200 S.E. 449.

This case is before this court on a bill of exceptions from the Superior Court of Laurens County, the exception being to a judgment of that court affirming an award of the Board of Workmen's Compensation which in turn affirmed the award of the single director before whom the initial hearing was held. The director found infavor of the claimant, Mrs. Nina Prescott, against the Brown Furniture Co. and the General Accident Fire and Life Assurance Corp., its insurance carrier, for injuries resulting in the death of her husband, George Prescott, while an employee of the Brown Furniture Company.

The exceptions are to the award as affirmed by the full Board of Workmen's Compensation on the ground the evidence conclusively showed (1) that the death of claimant's husband did not result from any accident suffered in the course of, or arising out of, his employment (2) that the claim sued on was not a risk incident to the employment, and (3) that the death was due solely to intoxication.

The evidence at the hearing authorized the director to find facts substantially as follows:

George M. Prescott was an employee of Brown Furniture Company, which carried an insurance policy with the General Fire and Life Assurance Corp., Ltd. covering its liability under the Workmen's Compensation law. His duties were to solicit business and collect accounts in a truck owned by his employer. His hours were somewhat irregular, but he usually returned to the store between 6:00 and 9:00 p. m. In connection with collecting accounts, he often received chickens, eggs and other produce in lieu of money.

On the day in question he was engaged in his regular employment. In the afternoon, however, he spent over an hour in a cafe talking with other customers and playing a pin ball machine. He consumed a considerable quantity of liquor at this time. The evidence of an employee of the place on this point was: "You could not say he was drunk, but he was drinking pretty heavy."

The deceased then left the shop and went across the street to his car. He returned immediately to ask for a paper bag, saying that he had done some collecting that day and needed a bag for the eggs. He then walked out into the street again, where he collided with the side of a moving taxi. The evidence showed the night to have been dark and foggy. He was immediately taken to a hospital, where he died as a result of the injuries. He was survived by a widow, the claimant in this case.

Carl K. Nelson, Dublin, John M. Slaton, Atlanta, for plaintiff in error.

R. M. Daley, Dublin, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

1. To be compensable under the Workmen's Compensation Act, an injury must "arise out of and in the course of the employment." Code, § 114-102. It arises out of the employment when the employment is the contributing proximate cause, and in the course of the employment when it is received while the workman is doing the duty he is called upon to perform. In his findings of fact, the director took the position that while there had been a deviation from employment which continued until after the deceased left the cafe, nevertheless, when he returned there for the sole purpose of obtaining a sack in which to put the eggs which he was taking to his employer as a part of his collections, that was such a resumption of his duties as to make that employment the contributing proximate cause of his injuries.

In Wicker v. Fidelity & Casualty Co., 59 Ga.App. 521, 1 S.E.2d 464, 465 it was held: " 'Where an employee breaks the continuity of his employment for purposes of his own and is injured before he brings himself back into the line of his employment, the injury does not arise "out of and in the course of" his employment, * * * but where the personal...