Guarantee v. Farr, No. 9826.

• Court: Supreme Court of Georgia
• Writing for the Court: ATKINSON, Justice
• Citation: 180 Ga. 266,178 S.E. 728
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION et al. v. FARR.
• Docket Number: No. 9826.
• Decision Date: 13 February 1935

180 Ga. 266

178 S.E. 728

OCEAN ACCIDENT & GUARANTEE
CORPORATION et al.
v.
FARR.

No. 9826.

Supreme Court of Georgia.

Feb. 13, 1935.

[178 S.E. 728]Syllabus by the Court.

Upon careful review of all the evidence introduced before the Department of Industrial Relations, upon which they held that the accident did not arise out of and in the course of employment of the employee, this court is of the opinion that this finding was not without evidence to support it, and that the department was authorized, in view of the law which makes their finding on the facts conclusive, to disallow the employee's claim for compensation; and the judgment of the Court of Appeals, affirming the judgment of the superior court reversing the findings of the Department of Industrial Relations, must be reversed.

Certiorari to Court of Appeals of Georgia.

Proceeding under the Workmen's Compensation Act by J. M. Farr, claimant, opposed by the Ocean Accident & Guarantee Corporation, insurer, and another. Judgment of the superior court reversing an award of the Department of Industrial Relations was affirmed by the Court of Appeals (47 Ga. App. 110, 169 S. E. 684), and the insurer and the employer bring certiorari.

Reversed.

J. M. Farr, as employee of Seckinger & Garwes, made claim before the Department of Industrial Relations for compensation on account of an alleged injury. The claim was resisted and defended on the ground that the injury did not arise out of and in the course of the claimant's employment. At a formal trial, after hearing evidence, the director of the Department of Industrial Relations sustained the above defense and found against the claim for compensation. On appeal to the full board of the Department of Industrial Relations, the decision of the director was sustained. The claimant entered an appeal to the superior court. The judge of the superior court, on review of the evidence, reversed the judgment refusing compensation. On writ of error the Court of Appeals affirmed the judgment of the superior court. The case is now for decision by the Supreme Court on writ of certiorari to the Court of Appeals. The exact question is, Did the evidence authorize the finding by the Department of Industrial Relations that the injury to the claimant did not arise out of and in the course of the employment? The evidence showed that on the day in question Farr, a steam-fitter and plumber having in charge as foreman two other men, was engaged for his employers, Seckinger & Garwes, in renovating certain boilers in the basement of the Mendel Realty Building in Savannah, Ga.

Farr on direct examination described the incident thus: "I was working there, and at that time we all knocked off to get lunch: and it was the custom to carry lunch with me, because we had only thirty minutes for lunch; and Mr. Merritt and Mr. Turner [the two men in his charge] went to dinner, and I washed my hands on the first floor and returned to the basement to get my lunch and eat it there, because it was warm and I was wet with perspiration; and on the way down the second step from the bottom, I slipped and fell."

Cross-examination:

"Q. You say this was on March 2, 1931? A. Yes sir.

"Q. At what time? A. At noon time between twelve and twelve-thirty.

"Q. And where had you been just prior to your fall? A. I came up and went to wash my hands. They were dirty, and I went up to wash my hands to eat my lunch.

"Q. Where did you go to wash them? A. Up on the next floor.

"Q. In the Mendel Building? A. Yes sir.

"Q. And then you returned to the basement? A. Yes sir.

"Q. And that is where you slipped and fell, while you were going after your lunch? A. Yes sir."

Seckinger, one of the members of the employer firm, gave answer to questions as follows:

"Q. Is there any requirement by you as to where an employee shall eat lunch whether on the job or off? A. No, sir.

"Q. Noontime is their time, and they can go where they please? A. Yes, sir."

At a subsequent examination Farr gave the following testimony:

[178 S.E. 729]

"Q. At what time did your lunch hour begin on the date you were hurt? A. My lunch began at one o'clock.

"Q. How many minutes did you have for lunch? A. Thirty minutes I had for lunch.

"Q. Where did you always eat it? A. Customarily I always carried it and ate it on the job.

"Q. How long had that custom been going on? A. For many years.

"Q. Why was it necessary for you to eat your lunch on the job? A. Because I could not make it to where I lived and back to the job on due time.

"Q. Did your employers, Seckinger and Garwes, know of this custom? A. Yes, sir.

"Q. Did they know of its going along for many years? A. Yes, sir.

"Q. Will you state whether or not they approved it or objected? A. They never objected. On one occasion I was late, seven years ago, in getting back from my dinner, and when I got back Mr. Seckinger told me I better make some arrangements to be back on time.

"Q. That was the time you, with the approval of your employer, began the custom of eating on the job during the thirty-minute lunch period? A. Yes, sir.

"Q. Well, now, during these many years during which this custom prevailed, will you state whether Mr. Seckinger or Mr. Garwes would some time come to...