Liberty Mut. Ins. Co. v. Reed

• Decision Date: 30 June 1937
• Docket Number: 26146.
• Parties: LIBERTY MUT. INS. CO. et al. v. REED.
• Court: Georgia Court of Appeals

192 S.E. 325

56 Ga.App. 68

LIBERTY MUT. INS. CO. et al. v. REED.

No. 26146.

Court of Appeals of Georgia, First Division

June 30, 1937

Syllabus by the Court.

"Under the provisions of the workmen's compensation act a claimant is not entitled to compensation where the injury to the deceased employee was the result of a fight between him and a fellow employee in which the deceased employee was the aggressor. In such a case the injury was not an accident arising out of the employment within the meaning of the act." The judge of the superior court erred in setting aside the award of the director of the Industrial Commission.

Error from Superior Court, Floyd County; C. W. Porter, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Fred B. Reed for the death of her husband, claimant, opposed by the Rome Stove & Range Company, employer, and the Liberty Mutual Insurance Company, insurance carrier. To review a judgment of the Superior Court reversing an award of the Industrial Commission denying compensation, the insurance carrier brings error.

Reversed.

MacINTYRE J., dissenting.

Neely Marshall & Greene, of Atlanta, for plaintiff in error.

John S Wrinkle, of Chattanooga, Tenn., and Wright & Covington, of Rome, for defendant in error.

GUERRY Judge.

Mrs Fred B. Reed filed claim before the Industrial Commission for compensation because of the death of her husband, Fred Reed, while he was an employee of the Rome Stove & Range Company. The Liberty Mutual Insurance Company (plaintiff in error) was the insurance carrier. The sole commissioner denied compensation, and on appeal the judge of the superior court reversed the judgment of the commissioner and ordered payment of an award. Exception is taken to this judgment.

It appears from the evidence adduced before the commissioner that on September 14, 1935, Fred B. Reed while in the employ of the Rome Stove & Range Works, was killed by being shot through the back of the head by one Brock. Fred Reed was a molder in the employ of the Rome Stove & Range Works (hereinafter referred to as the employer) and had been a member of the Molder's Union, but had, together with four other employees, refused to pay any further dues to the union. The union then demanded that the employer either pay the dues for the five men, including the deceased, or discharge them from their employment. This the employer refused to do, and, because of this fact, a strike was called which resulted in practically all the laborers leaving the employer with the exception of these five. The employer hired other employees to take the places of those on strike and trouble began at the plant of the employer. The plant was put under police protection, and, because of the trouble occurring between the strikers and those who had replaced them, as well as the five men who had refused to join the union or go on a strike, two of these five men were caught at a place distant from the plant and severely beaten. It then became necessary for the employer to furnish taxicabs to transport their men to and from their place of work to their homes. On the day that Reed was killed and some ten minutes prior to the time he arrived at the plant of the defendant company, two other employees had been shot by the strikers, who had congregated outside the plant. This shooting had occurred just as three taxicab loads of employees had driven up to the door to be unloaded. One of the men shot at that time was Tallent, who was one of the five men who had refused to join the union. Tallent and Plank, the other employee who was shot, were both armed with pistols. The commissioner found that Reed "had armed himself with the instructions or knowledge of his employer." Shortly after the first shooting, but before Reed was shot, the vice-president or superintendent of the employer came to the plant and took his pistol out of his car and carried it into the plant. One witness testified that from the way he looked "he was frightened and mad and torn up."

The chief of police of Rome, a witness for the defendant, testified that there were a bunch of men congregated on the outside of the plant, and "We [he had three other policemen with him] expected there was going to be trouble"; that after Mr. Henson, the superintendent, went into his office with his pistol, shooting began from the inside of the building, and "I turned to go out where the bunch of men was and I told them * * * 'Boys, all of you be quiet out here and stop this ganging up and get back.' They all backed, just about that time Mr. Reed's car came in the taxi and some one in the crowd holloaed, 'Pull him out of there, pull him out of there.' A fellow by the name of Ingram right to my right opened the door of this taxi and I grabbed his hand and slammed the door and told the taxi driver * * * 'Go ahead, boy,' and when I done that, Mr. Reed raised up on the seat and fired in Ingram's chest; shot him right in there, and the bullet come out there; and when they done that, I couldn't tell what happened then. It was just a volume of guns firing and the whole thing was covered up in smoke and Mr. Reed was shot in the back of the head." Over a hundred shots were fired and the bullets went into the taxi and the door of the building and along the walls of the plant. Another witness testified that he saw another man named Brock fire through the back of the taxi the shot that killed Reed. The chief of police further testified that Reed fired the first shot and that he thought the fire from the other men was caused by the act of Reed shooting Ingram, and, further, that he thought if Reed had not fired his gun his men could have taken care of the situation.

The finding of the sole commissioner was in part as follows "After careful consideration of the evidence adduced in this case, the director finds as a matter of fact that Fred B. Reed,...