Globe Indem. Co v. Macken-dree, (No. 18770.)

• Decision Date: 14 December 1928
• Docket Number: (No. 18770.)
• Citation: 146 S.E. 46,39 Ga.App. 58
• Parties: GLOBE INDEMNITY CO. et al. v. MacKEN-DREE.
• Court: Georgia Court of Appeals

39 Ga.App. 58

146 S.E. 46

GLOBE INDEMNITY CO. et al.

v.MacKEN-DREE.

(No. 18770.)

Court of Appeals of Georgia, Division No. 2.

Dec. 14, 1928.

(Syllabus by the Court.)

the Workmen's Compensation Act (Laws 1920, p. 107).

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Proceeding under the Workmen's Compensation Act by Elizabeth MacKendree, claimant, for the death of William T. MacKendree, her husband, opposed by the Herald Publishing Company, employer, and the Globe Indemnity Company, insurance carrier. Award of the Industrial Commission, allowing compensation, was affirmed by the superior court, and the insurance carrier and employer bring error. Affirmed.

Bryan & Middlebrooks, of Atlanta, for plaintiffs in error.

Wright & Jackson, of Augusta, for defendant in error.

BELL, J. This is a workman's compensation case, in which the employer and insurance carrier are excepting to a judgment of the superior court, affirming an award by the industrial commission in favor of the de-pendents of a deceased employee. The facts were undisputed, and, as agreed to before the commission, were as follows:

William T. MacKendree was employed by Herald Publishing Company, of Augusta, Ga., as circulation manager. The company had an agency in Eloree, S. C. On July 21, 1927, the employee, in accordance with his custom and with the full knowledge, consent, and approval of his employer, drove to Eloree in an automobile owned by his employer for the purpose of transacting the business of his employee with the agent at that place. After completing such business and in the afternoon of the same day he "started on his return trip to make his usual report and accounting to his employer. But while proceeding in said automobile along a public state highway, at a lawful speed and in a prudent and careful manner, a sudden storm overtook him while passing through a piece of woodland, and a tree was blown down by the wind across the automobile, crushing his head and producing almost instant death."

It was admitted by the employer and the insurance carrier that such injury and death arose in the course of the decedent's employment, so as to entitle his dependents to compensation, provided such injury and death arose out of the employment. The parties expressly submitted that this was the only issue for determination.

It is our opinion that this case is controlled by the decision in the case of New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 118 S. E. 786. It is unlike the case of Maryland Casualty Co. v. Peek, 36 Ga. App. 557, 137 S. E. 121, wherein the employee, while traveling upon a train in the line of his duty, was slain in an unprovoked assault by a passenger, who, after the manner of a madman or a lunatic, jumped up from his seat and began to shoot at the other passengers in the coach. As was pointed out in that case, had the employee "been injured by a derailment, a collision, a breaking through a trestle or bridge, or other travel accident, his right to compensation would be clear." We think that in the case before us the death of the employee was the result of a travel accident.

Whether an injury would be compensable, if occasioned by a storm, without other contributing cause, is not a question in this case. Nor do we find in the so-called "lightning cases" any logical precedent for a decision against compensation in the case at bar. Even in that class of cases the employer may be liable, where the employee was subjected to a greater danger from lightning by reason of his employment.

MacKendree was not killed solely by a storm, but by the force of a storm operating upon a tree which stood by the wayside. Trees do occasionally fall, and perhaps every tree must fall at some time. The particular tree stood upon the route which MacKendree was accustomed to take in the regular discharge of his duties, and his employment exposed him to such danger as might exist from the falling of this or any other tree standing along the route so traveled by him. The risk was not one which was common to all mankind, or to which the public at large was equally...