Kimbro v. Black & White Cab Co

• Citation: 50 Ga.App. 143,177 S.E. 274
• Decision Date: 12 November 1934
• Docket Number: No. 24144.,24144.
• Court: United States Court of Appeals (Georgia)
• Parties: KIMBRO. v. BLACK & WHITE CAB CO. et al.

50 Ga.App. 143

177 S.E. 274

KIMBRO.

v.BLACK & WHITE CAB CO. et al.

No. 24144.

Court of Appeals of Georgia,

Division No. 2.

Nov. 12, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceeding under the Workmen's Compensation Act (Acts 1920, p. 167 as amended) by F. L. Kimbro, claimant, opposed by the Black & White Cab Company, employer, and the insurer. From a judgment of the superior court affirming an award of the Department of Industrial Relations denying compensation, claimant brings error.

Affirmed.

Eldon Haldane, of Atlanta, for plaintiff in error.

Harry L. Greene and Neely, Marshall & Greene, all of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

This case is in this court to review the judgment of the superior court affirming an award of the Industrial Commission denying compensation to the claimant. Claimant was a taxicab driver employed by the defendant company at the time he received the injury for which he seeks compensation. It was a custom among the drivers of the cabs of the company, and a rule of the company not approved by the commission, that the first in line at a taxicab stand was first out, that is to say, the one first in line received the next fare. Drivers of cabs are paid a commission or receive a percentage of the fares collected by them. Claimant took out a fare out of his turn; and, while he was out, the driver next in line received a fare. When claimant returned, he parked his cab across the street from the stand awaiting his turn to get in line. He got out of his cab and came across the street to where the driver was standing who was next out when claimant took out the fare out of turn, and hot words ensued, during the course of which claimant was alleged to have called the other driver a "---- liar." Thereupon this driver and coemployee of claimant struck claimant, knocking him down to the pavement, from which he received the injuries for which he seeks compensation. Under claimant's evidence a finding that he was brutally assaulted without cause by the other driver, and that he received an injury during the course of his employment, would have been authorized. However, in finding against the claimant, the single commissioner found as a matter of fact that the claimant was injured in a personal altercation between himself and his coemployee, during which he was the aggressor, or that is, that claimant put in motion the difficulty from which he...