Johnson v. Aetna Casualty & Surety Co., 9036.

• Decision Date: 20 May 1939
• Docket Number: No. 9036.,9036.
• Citation: 104 F.2d 22
• Parties: JOHNSON et al. v. ÆTNA CASUALTY & SURETY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

104 F.2d 22 (1939)

JOHNSON et al. v. ÆTNA CASUALTY & SURETY CO.

No. 9036.

Circuit Court of Appeals, Fifth Circuit.

May 20, 1939.

Benj. E. Pierce, of Augusta, Ga., Randall Evans, Jr., of Thomson, Ga., and Edgar Brown and J. W. Watts, Jr., both of Barnwell, S. C., for appellants.

E. D. Fulcher and James S. Bussey, both of Augusta, Ga., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

Frank Green carried a policy of liability insurance on a truck used in his sawmill business, Aetna Casualty & Surety Company being the insurer. He lived at Norwood, Georgia, but his sawmill was located about forty miles away in South Carolina. He customarily took with him in the truck each Monday morning the sawmill hands who lived near his home, and brought them back Saturday afternoon. They would be paid off at Green's office in Augusta, Georgia, on the way home. On Saturday afternoon, April 23, 1938, Green was returning homeward in the truck with certain sawmill hands, including Willie Johnson, Willie Radford and Elvin Green, the latter driving the truck. About nine miles from the mill and in South Carolina the truck collided with another truck, and Johnson was killed and Radford injured. Suits were threatened against Frank Green and Elvin Green, who called on the Aetna to defend, and the Aetna, contending that its policy did not cover the cases, petitioned in the District Court for a declaratory decree to that effect and for injunction against any assertions of its liability. The judge, a jury being waived, found that Elvin Green, Willie Johnson and Willie Radford were all at the time of the collision employees of Frank Green and in the course of their employment, and that the policy did not cover, and decreed accordingly. Johnson's relatives entitled to sue for his death and Radford appeal.

The evidence is uncontradicted that work at the sawmill ceased on this Saturday as on other Saturdays at noon, that the "time" of each man for the week was ascertained, and their money was to be paid at Augusta on the way home. Johnson, however, was overdrawn and no money was coming to him. The collision occurred before reaching Augusta. The transportation to and from the mill was not expressly a term of the hiring of the hands, but had been afforded for several years, it was understood that they could ride if present when the truck started. We think the judge was warranted in concluding that the transportation was an implied term of the employment. The distance from the homes of the men to their work was so great that transportation must have been considered by both employer and employee. The ride was not for the mere convenience of the employee after his work was done, but was for the forwarding of the employer's work in that it was necessarily provided to get these employees for the very moderate wages paid them. No one would doubt that to carry them forty miles to work on Monday was forwarding the sawmill enterprise, or would think the employer had discharged his obligations if he had left them in the woods forty miles from home on Saturday. It has often been held that employees riding free to and from their work in the employer's vehicle continue to be employees and are not passengers, Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, 19 S.E. 21; Railey v. Garbutt & Co., 112 Ga. 288, 37 S.E. 360; Roland v. Tift, 131 Ga. 683, 63 S.E. 133, 20 L.R.A.,N.S., 354; Dwan v. Great Eastern Lumber Co., 15 Ga.App. 108, 82 S.E. 666; Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787; and when the question arises under workmen's compensation statutes they are held to be still in the course of their employment. Liberty Mutual Ins. Co. v. Mangham, 56 Ga.App. 498, 193 S.E. 87; Swanson v. Latham, 92 Conn. 87, 101 A. 492. Appellants rely on American Mutual Liability Ins. Co. v. Curry, Ga.Sup., 200 S.E. 150. The opinion fully recognizes the general rule that where...