Keen v. New Amsterdam Cas. Co.

• Decision Date: 21 August 1925
• Docket Number: 15862.
• Citation: 129 S.E. 174,34 Ga.App. 257
• Parties: KEEN v. NEW AMSTERDAM CASUALTY CO. ET AL.
• Court: Georgia Court of Appeals

129 S.E. 174

34 Ga.App. 257

KEEN v. NEW AMSTERDAM CASUALTY CO. ET AL.

No. 15862.

Court of Appeals of Georgia, Second Division

August 21, 1925

Syllabus by Editorial Staff.

That injury is result of willful or criminal assault of third person on employee while engaged in work of his employment does not necessarily prevent injury from being "accidental" within meaning of Laws 1920, pp. 169 170, § 2, subd. d.

Garage employee, while asking instructions from employer, was shot by customer of employer, irritated at employer's refusal to do, without further charge, additional work on car. Held that, since injury occurred at time when employee was not only engaged in work of employment but also in performance of ordinary duties, it "arose out of and in course of employment" within Laws 1920, pp. 169, 170 § 2, subd. d.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Proceeding under the Workmen's Compensation Act by P. G. Keen claimant, opposed by the New Amsterdam Casualty Company, the insurer, and others. An award of compensation by the Industrial Commission was reversed by the Superior Court, and claimant brings error. Reversed.

R. D. Feagin and J. F. Urquhart, both of Macon, for plaintiff in error.

Brock, Sparks & Russell, of Macon, for defendants in error.

Syllabus OPINION.

JENKINS P.J.

The claimant workman was employed by a partnership at a garage as an acetylene welder and automobile mechanic at a stated salary per week and so much per hour for extra work in the automobile line outside of welding. While he was engaged in the work of his employment and was asking instructions from one of his employers with reference to a job in the shop, a customer talking with this employer, and, so far as indicated, without altercation or provocation other than because of irritation at the refusal of the employer to do, without further charge, additional work on a car under a bill previously paid by the customer, drew a pistol, and after the claimant workman had cried out a warning to his employer of the impending danger, and after the employer had started to drop or fall out of the way, shot at the employer and wounded him on the side of the head, and immediately fired at and wounded the claimant, and then shot at the other employer in the garage. The Industrial Commissioner hearing the case, and the full Industrial Commission on review, found for the claimant. The Commission found that the assailant had no possible grudge against the claimant, and simply shot him after he had wounded the employer because he was standing close to him, and because the claimant had made an exclamation when the assailant was about to shoot the employer. The superior court, on appeal by the insurance carrier, reversed this award, and adjudged that the claimant "did not receive his injuries as a result of his employment," and that they "did not grow out of said employment as a proximate or contributory cause." Held:

1. The Georgia Workmen's Compensation Act, in common with similar provisions in other jurisdictions, as originally enacted, allowed compensation for injuries only in case of "accident arising out of and in the course of the employment," and excluded "injury caused by a willful act of a third person directed against an employee for reasons personal to such employee or because of his employment." Laws 1920, pp. 169, 170, § 2, subd. d; 28 R.C.L. 796.

(a) Under the facts and circumstances disclosed by the record, the Commission would not have been even authorized to find that the assault was directed against the claimant for reasons personal to him.

(b) Although the amendatory act of 1922 (Laws 1922, p. 187), striking the words "or because of his employment," was enacted subsequent to the date of the injury, the purpose of this amendment was merely to clarify by legislation what had already been made plain by judicial construction. The fact that the injury is the result of the willful or criminal assault of a third person upon an employee while engaged in the work of his employment does not necessarily prevent the injury from being accidental within the meaning of the Compensation Act; nor was the Commission compelled to find, because of the fact of such employment, that the assailant, with knowledge thereof, was actually moved to commit the assault "because of his employment." Under the facts and circumstances disclosed by the record, they were fully authorized to find that the injury to the claimant was occasioned, not because of the mere fact that such relationship of employer and employee existed, but by reason of his presence when the assault upon his employer was made, and especially on account of his acts and conduct in protecting the life of his employer and the interest of his employment. Pinkerton Detective Agency v. Walker, 157 Ga. 548, 553-555, 122 S.E. 202, 35 A.L.R. 557.

2. Under the facts and circumstances disclosed by the record the Commission was further authorized, if not compelled, to find, as seems to be...