Lewis Wood Preserving Co. v. Jones, 40921

• Citation: 110 Ga.App. 689,140 S.E.2d 113
• Decision Date: 24 November 1964
• Docket Number: No. 1,No. 40921,40921,1
• Parties: LEWIS WOOD PRESERVING COMPANY v. Lucille B. JONES et al
• Court: United States Court of Appeals (Georgia)

Page 113

140 S.E.2d 113

110 Ga.App. 689

LEWIS WOOD PRESERVING COMPANY v. Lucille B. JONES et al.

No. 40921.

Court of Appeals of Georgia, Division No. 1.

Nov. 24, 1964.

Syllabus by the Court

Where an employee was subject to special calls at irregular intervals throughout the night in addition to his regular daytime shift, for which calls he was paid a fixed sum over and above his regular hourly wage, his accidental death in a collision involving his personal automobile, occurring within a few minutes after having received a call from his employer and at a location along a direct route from his home to the plant, was an accident arising out and in the course of the employment.

Mrs. Lucille B. Jones, as the widow of Walter H. Jones, filed a claim for workmen's compensation death benefits for herself and the minor children of her marriage to the deceased. The employer was Lewis Wood Preserving Company, a self-insurer. The deputy director's findings of fact relating to the circumstances surrounding the accidental injury and whether the accidental injury arose out of and in the course of employment, were as follows: 'I further find from the evidence that deceased employee, Jones, was in the performance of his duties for his employer when he departed from his home in response to the summons of employer's night plant superintendent to appear at the plant to change a charge in the cylinder, as employee was accustomed to doing for several years prior to the accidental death while in transit complying with the special instructions of the plant superintendent of employer, Harold Glass, to come to work on the night of May 8, 1962, and I find that the death of employee arose out of and in the course of and because of his employment with employer herein May 8, 1962, as contended by the widow-claimant, while following a direct route to defendant's plant to commence work as he was instructed by employer's superintendent to do. I therefore find as a matter of fact and conclude as a matter of law from all the evidence adduced in this matter that in contemplation of the Workmen's Compensation Act of Georgia, this claim for compensation is amply supported by the evidence in claimant's favor and is within the purview of the Georgia Code Sections 114-102, 114-413(a) and (b), and 114-414, as to dependency of the widow-claimant and the minor children of deceased left surviving him.' On appeal the full board adopted the findings of fact and award of the deputy director. The Superior Court of Mitchell County affirmed the award of the full board and it is to this judgment that the employer now excepts.

Woodruff, Savell, Lane & Williams, John M. Williams, Atlanta, for plaintiff in error.

Robert Culpepper, Jr., Camilla, for defendant in error.

FELTON, Chief Judge.

The facts being undisputed, whether the employee's accidental death arose out of and in the course of his employment is a question of law. Thornton v. Hartford Accident &c. Co., 198 Ga. 786, 795, 32 S.E.2d 816; Travelers Insurance Co. v. Smith, 91 Ga.App. 305, 308, 85 S.E.2d 484.

The undisputed facts, as they appear from the record and the deputy director's findings of fact, are to the effect that the decedent had been employed as a crane operator for several years prior to his accidental death; that during every other week he was subject to call, after working a regular 8 hour day shift, during the remaining 16 hours of the day to change treating charges; that he had answered such calls on an average of 6 or 7 times a week and sometimes several times in one night, having already gone out on an earlier call about 45 minutes before going out on the call on the way to which he was killed in an automobile collision; that, although he had a general idea when he left his regular day shift in the afternoon when the next charge would be ready to change, there was no way to anticipate it accurately until 30 minutes or an hour in advance, due to the nature of the operation, the different types of material processed, the varying moisture content and many other factors; that the Treating Superintendent habitually called the decedent at his home about 15 or 20 minutes before the charge was ready to be changed and knew that the decedent always drove his own automobile to the plant from his home, a distance of .7 mile; that during the weeks when the decedent was subject to call, he always remained at home except for a few occasions when he went on an errand, in which cases he checked with his employer before leaving; that the decedent was paid $5.00 for each special call, over and above his regular hourly rate for the time required on the call; that the fatal accident occurred about 3 blocks from the plant, on the usual direct route from the decedent's home to the plant, and within less than 25 minutes after he had received a special call from his employer to report for work.

The general rule is that where an employee's duties begin and end at his place of employment and the employer does not furnish him transportation to and from that place, accidents occurring while the employee is en route to or coming from such place do not arise out of his employment. American Mut. Liability Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150; Wilcox v. Shepherd Lumber Co., 80 Ga.App. 71, 55 S.E.2d 382; Bailey v. Murray, 88 Ga.App. 491, 497, 77 S.E.2d 103.

Our courts, as well as those in foreign jurisdictions, have been constrained by varying factual situations to recognize a number of exceptions to this general rule. In Department of Revenue v. Cook, 101 Ga.App. 688, 114 S.E.2d 806, this court affirmed an award of compensation for death by coronary thrombosis of a State Revenue Department enforcement officer who was on call for duty at all times, both day and night, and whose death occurred while driving home from a place where he had not been performing any actual duties, but had been waiting for his co-worker so they could commence their day's work. The instant case is even stronger, for the reason that the decedent was actually en route to perform actual duties at the time of his death. A number of cases have allowed compensation even though the employee was furnishing his own transportation, where such means of transportation was intended or contemplated by the parties to the contract of employment and the employee was where he could reasonably have been expected to be at the time of the accident. See Cooper v. Lumbermen's Mut. Cas. Co., 179 Ga. 256, 175 S.E. 577; Bituminous Cas. Corp. v. Humphries, 91 Ga.App. 271, 85 S.E.2d 456; American Mut. Liability Ins. Co. v. Casey, 91 Ga.App. 694, 86 S.E.2d 697. In the latter case the employee, a field superintendent of a construction company on 24 hour call, was killed on the way from the site of construction to his home where he prepared reports and did other work for his employer. The court there said that the 'employment of the claimant's husband in this case was more nearly comparable to that of a traveling salesman. His employment was broader in scope than that of ordinary employees; his hours were more irregular, and usually longer, than those of ordinary employees working in a fixed location, and he was in continuous employment more or less day or night. Thornton v. Hartford Accident & Ind. Co., 198 Ga. 786, 32 S.E.2d 816.'

While some earlier cases seem to indicate that the causative danger must be peculiar to the work and not common to the neighborhood for the injuries to arise out of and in the course of the employment (see Maryland Casualty Co. v. Peek, 36 Ga.App. 557 (137 S.E. 121), Hartford Accident and Indemnity Co. v. Cox, 61 Ga.App. 420, 6 S.E.2d 189), later cases have been somewhat more liberal, saying that, 'to be compensable, injuries do not have to arise from something peculiar to the employment.' Fidelity & Casualty Co. of N. Y. v. Bardon, 79 Ga.App. 260, 262, 54 S.E.2d 443, 444. "Where the duties of an employee entail his presence [at a place and a time] the claim for an injury there occurring is not to be barred because it results from a risk common to all others * * * unless it is also common to the general public without regard to such conditions, and independently of place, employment, or pursuit.' New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786, cited in Globe Indemnity Co. v. MacKendree, 39 Ga.App. 58, 146 S.E. 46, 47.' McKiney v. Reynolds & Manley Lumber Co., 79 Ga.App. 826, 829, 54 S.E.2d 471, 473.

The only Georgia case which we have found which might seem to support a finding that the death of the claimant's decedent was not compensable is that of...