General Fire & Cas. Co. v. Bellflower

• Decision Date: 21 May 1971
• Docket Number: No. 46201,No. 2,46201,2
• Citation: 123 Ga.App. 864,182 S.E.2d 678
• Parties: GENERAL FIRE & CASUALTY COMPANY et al. v. Shirley BELLFLOWER et al
• Court: Georgia Court of Appeals

Page 678

182 S.E.2d 678

123 Ga.App. 864

GENERAL FIRE & CASUALTY COMPANY et al. v. Shirley BELLFLOWER et al.

No. 46201.

Court of Appeals of Georgia, Division No. 2.

May 21, 1971.

Rehearing Denied June 4, 1971.

Certiorari Denied July 15, 1971.

Syllabus by the Court

The trial judge properly affirmed the award of the Board of Workmen's Compensation.

This is a workmen's compensation case. Southern Greyhound Lines and its insurer appeal from the order of the lower court affirming an award in favor of the widow and children of Bellflower, a bus driver from Macon who was killed in Jacksonville, Florida, while 'off duty' between trips. The issues on appeal are, in general, whether there is an evidentiary basis to support the findings and award of a deputy director, which the full board adopted and the lower court affirmed, in respect to (1) injury by accident, (2) in the course of, (3) and arising out of the employment, (4) not caused by the wilful act of a third person for reasons personal to the employee, within the meaning of Code § 114-102, as amended.

Bellflower was on the extra board in Macon, and left Macon around 3 p.m. on August 1, 1968, in charge of a bus enroute to Jacksonville, arriving about 8 p.m. that evening. In Jacksonville the employer provided rooms at company expense at the Floridian Hotel near the bus station for rest and sleeping by out-of-town drivers between trips. The use of such facilities was not mandatory, but if a driver stayed elsewhere any expenses incurred were not specifically reimbursable. The employer did, however, provide a flat allowance of 4% of gross earnings for out-of-town maintenance such as meals.

Bellflower and Swanson, another driver from Macon, were staying at the Floridian, and around 11:30 p.m. Bellflower telephoned Swanson, who was in his room, and suggested they go out together to get something to eat. They met in the lobby of the hotel, went to a restaurant who blocks away, and while returning to the hotel by a direct route about 1 a.m. on August 2, they were accosted by Grover, a stranger, who shot Bellflower, causing his death on August 3, 1968. Grover pleaded guilty in a Florida court to the offense of second degree murder.

In weighing the testimony of Swanson and Grover regarding this incident the deputy director specifically rejected Grover's testimony tending to disclose that Bellflower was the aggressor, and accepted Swanson's version of the incident tending to show that the assault was without provocation. Grover contended that despite his guilty plea to second degree murder the offense was actually no more than manslaughter, if anything.

The evidence also discloses ICC safety regulations limiting a driver to 10 driving hours within a 15-hour period following 8 consecutive hours off duty. The company rule, however, required an off duty period of 16 hours. A union agreement required 9 hours' rest between arrival and departure time for extra drivers and drivers working extra hours. The normal driving time between Macon and Jacksonville was about 5 hours, and two drivers, including Swanson, were ahead of Bellflower for return to Macon. In regular course Bellflower probably would have returned to Macon on August 2, 1968.

There is also testimony to the effect that while Bellflower was in the 'off duty' status at the time of the incident causing his death he was also in an 'on call' status, subject to the safety rule limitations. Swanson explained the status by stating, 'You have to give them a (telephone) number and from the time he calls you, you have to report in one hour's time away from home, otherwise you will be removed from the extra board.'

A law enforcement official testified that in respect to crimes against the person the hazards are greatest in the downtown Jacksonville area at night, and that the bus station is located in the center of one of the highest crime areas.

Gambrell, Russell, Killorin, Wade & Forbes, Edward W. Killorin, Lloyd Sutter, Atlanta, for appellants.

O. L. Crumbley, L. Z. Dozier, Robert F. Higgins, Macon, for appellees.

JORDAN, Presiding Judge.

1. It is settled law that the deputy director and the full board, as the fact finders, have the exclusive prerogative of weighing the evidence, including determinations of the credibility of witnesses, and that the courts on appeal are bound by the findings if supported by any evidence.

2. A felonious assault does not prevent the resulting injury from being treated as an accident under the workmen's compensation law if the wilful act is not directed against the employee for reasons personal to the employee. Employers Insurance Company of Alabama v. Wright, 108 Ga.App. 380, 381, 133 S.E.2d 39; Pinkerton National Detective Agency v. Walker, 30 Ga.App. 91, 117 S.E. 281; Id., 157 Ga. 548, 122 S.E. 202; Keen v. New Amsterdam Casualty Company, 34 Ga.App. 257, 129 S.E. 174; Commercial Construction Company v. Caldwell, 111 Ga.App. 1, 140 S.E.2d 298. As between the testimony of the deceased's companion and his assailant the deputy director and the full board chose the version of the deceased's companion, as they had a right to do as triors of fact, and under this version the evidence authorizes the conclusion of accident death not by reason of a wilful act of a third person directed against an employee for reasons personal to the employee.

3. 'The words 'in the course of the employment' relate to the time, place, and circumstances under which the accident takes place, and an accident arises in the course of the employment when it occurs within the period of employment, at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto.' New Amsterdam Casualty Company v. Sumrell, 30 Ga.App. 682, 688, 118 S.E. 786, 789. In our opinion the status of a bus driver who is required to be away from home overnight is substantially analogous to that of a traveling salesman required to remain away from home. 'A traveling salesman is taken away from his home or headquarters by his employment; and, because of the nature of his work, he usually can not return home each night. He must of...