Hadsock v. J.H. Harvey Co., Inc.

• Decision Date: 18 March 1994
• Docket Number: No. A93A2275,A93A2275
• Citation: 212 Ga.App. 782,442 S.E.2d 892
• Parties: HADSOCK v. J.H. HARVEY COMPANY, INC.
• Court: Georgia Court of Appeals

Page 892

442 S.E.2d 892

212 Ga.App. 782

HADSOCK v. J.H. HARVEY COMPANY, INC.

No. A93A2275.

Court of Appeals of Georgia.

March 18, 1994.

Reconsideration Denied April 1, 1994.

Certiorari Denied June 29, 1994.

J. Converse Bright, Valdosta, for appellant.

Young, Clyatt, Turner, Thagard & Hoffman, Robert M. Clyatt, Daniel C. Hoffman, Valdosta, Hodges, Erwin, Hedrick & Kraselsky, Kenneth B. Hodges, Jr., Albany, for appellee.

BEASLEY, Presiding Judge.

Hadsock's son, Richie Bethea, was murdered by another employee, Wright, during an armed robbery while making a night deposit at a local bank for their employer, Harvey. Hadsock filed a tort action against Harvey and against the bank, which is not a party to this appeal. Harvey was granted summary judgment on the ground that OCGA § 34-9-11, the exclusivity provision of the Workers' Compensation Act, provided immunity because Bethea's death arose out of and in the course of his employment.

Viewing the evidence in favor of the non-movant plaintiff, Candler Gen. Hosp. v. Purvis, 123 Ga.App. 334, 335, 181 S.E.2d 77 (1971), the record shows that at the time of his death Richie Bethea was a student and part-time employee of Harvey, working as a "stock man" at Harvey's store in Valdosta. The store manager asked him to assist in closing the office "a couple of nights a week," which involved closing down cash registers and preparing the bank deposit. On Wednesdays, Fridays, and Saturdays, Harvey employed a security guard who took the deposit to the bank with one of the managers. On most Thursdays, for a period of two years, Bethea and Madson, a "bag boy," took the deposit to the bank because there was only one manager in the store. There was evidence that Harvey's policy required that a manager make the deposit and that the manager and assistant manager knew this.

Harvey's policy directed store managers to vary the time and the route taken to the bank "for safety reasons," but Bethea and Madson were not so instructed. They left at the same time each Thursday and did not vary their route. The store manager acknowledged that anyone working in the store could learn when the deposit was being made "if they put their mind to it." The assistant manager reported his suspicions of employee Wright to the store manager, but no action was taken. On Thursday, July 9, 1992, Wright and an accomplice followed Bethea and Madson to the bank, robbed Bethea of the money as he approached the night deposit drawer, and shot him to death.

The undisputed facts show that the employee's death arose out of and in the course of employment. OCGA § 34-9-1(4). There is remedy, but it is limited to that which is provided through the legislature by the Workers' Compensation Act. OCGA § 34-9-11(a); Labelle v. Lister, 192 Ga.App. 464(1), 385 S.E.2d 118 (1989). The issue is whether the injury or death was job-related. When the issue is presented to establish a bar in a tort action, "the normal procedure is for the jury to find facts and then to apply to those facts the law as given by the trial court in its instructions." Utz v. Powell, 160 Ga.App. 888, 889, 288 S.E.2d 601 (1982). However, as pointed out in Utz, the issue may be appropriate for resolution by summary judgment.

" 'The words "in the course of the employment" relate to the time, place, and circumstances under which the [incident] takes place, and an [incident] 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 Cas. Co. v. Sumrell, 30 Ga.App. 682, 688 (118 SE 786) [ (1923) ]." Gen. Fire, etc., Co. v. Bellflower, 123 Ga.App. 864, 182 S.E.2d 678 (1971).

There is no question that Bethea's activity was in pursuit of the employer's business. ¹ Depositing the employer's receipts for the day was not a personal favor for the supervisor or a personal errand of the employee or any other category of activity which would remove it from the scope of the employment for which he was getting paid.

There is also no question that the two employees were assigned to the task by their supervisor. The fact that it was contrary to company policy for the supervisor to make such an assignment does not take it outside the scope of employment. The employees were in no position to challenge it or even to know of the policy. They were engaged in an activity in the interest of the employer, not in a gratuitous act which is outside the range and scope of the job responsibilities assigned. ² This is not a case where the employee disregarded instructions or took upon himself an unauthorized activity, but rather a case where the employee followed the instructions given to him to complete a task which was part of the employer's business operations.

The Workers' Compensation Act is to be liberally construed in determining whether an injury is compensable under it. Graves v. Builders Steel Supply, 186 Ga.App. 736, 737, 368 S.E.2d 188 (1988), citing the Supreme Court case of Samuel v. Baitcher, 247 Ga. 71, 73, 274 S.E.2d 327 (1981). It must be viewed in this manner both when an employee has made a claim and is seeking coverage under it and when an employer has sought its protection as a defense to a tort action. One of the purposes of the Act is surely the humanitarian one of providing relief to injured employees, but another purpose is to protect employers against excessive recoveries of damages. Slaten v. Travelers Ins. Co., 197 Ga. 1, 3, 28 S.E.2d 280 (1943); Samuel v. Baitcher, supra. We are to interpret the Act, if its language will permit, so as not to deny its benefits to either employee or employer. Slaten, supra. If the damages in this case or in death cases generally are inadequate, it is the legislature which must effectuate a change, not the court by way of excluding such cases from workers' compensation coverage.

In this case, there was a causal connection between the employment and the injury. See Borden Foods Co. v. Dorsey, 112 Ga.App. 838(3), 146 S.E.2d 532 (1965). There was no personal deviation which broke the link with employment. See Chandler v. Gen. Accident Fire, etc., Corp., 101 Ga.App. 597, 114 S.E.2d 438 (1960). The employee was killed while in the performance of a task which was of benefit to the employer. Edwards v. State of Ga., 173 Ga.App. 87, 88, 325 S.E.2d 437 (1984) and citations therein.

The employer's negligence vel non, or even gross negligence, is not in issue. As Justice Duckworth clearly stated in Slaten, supra at 197 Ga. at 2, 28 S.E.2d 280: "the single and only requirement [for the no-fault workers' compensation coverage is] that the injury resulted from an accident arising out of and in the course of the employment." The existence of that condition precludes the appellant's tort action, and we cannot narrow the coverage of workers' compensation in order to preserve this tort action.

Judgment affirmed.

POPE, C.J., BIRDSONG, P.J., and ANDREWS, JOHNSON and BLACKBURN, JJ., concur.

McMURRAY, P.J., and COOPER and SMITH, JJ., dissent.

SMITH, Judge, dissenting.

I respectfully dissent. "It is well settled that when an injury arises out of and in the course of employment, the employee's sole remedy is against the employer, pursuant to OCGA § 34-9-11." Labelle v. Lister, 192 Ga.App. 464(1), 385 S.E.2d 118 (1989). Whether an employee's injury arose out of and in the course of employment is usually a question of fact. Edwards v. State of Ga., 173 Ga.App. 87, 88, 325 S.E.2d 437 (1984). "The terms 'arising out of' and 'in the course of' are not synonymous. An injury arises 'in the course of employment' when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto." (Citations and punctuation omitted.) Murphy v. ARA Svcs., 164 Ga.App. 859, 861, 298 S.E.2d 528 (1982). Another guide to determining the scope of employment is whether the employee "was performing acts within the class of service for which he was employed." Redwing Carriers v. Knight, 143 Ga.App. 668, 669(1), 239 S.E.2d 686 (1977). Here, in contrast, testimony on the record indicates that carrying a deposit to the bank was a managerial duty and should not have been performed by a "stock man" and "bag boy."

Moreover, " '[i]t is entirely true that the employer may define the limits of the employee's sphere of employment by prohibitions, rules, and regulations, and if the employee violates these he is outside the scope of his employment, and any injury sustained outside the scope of the employment is not compensable.' " Parker...