Lumbermen's Mut. Cas. Co v. Cooper
| Citation | 47 Ga.App. 284,170 S.E. 384 |
| Decision Date | 02 August 1933 |
| Docket Number | No. 22954.,22954. |
| Parties | LUMBERMEN'S MUT. CASUALTY CO. et al. v. COOPER. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
Where an employee's actual place of work was in woods twenty miles from the mill of his employer, and he came to the mill each morning to catch a truck going to his place of work, doing this with the knowledge and consent of the employer, and the truck did not belong to, and was not operated or controlled by, the employer, and where the employee's only duties were to be performed in the woods, and his time did not begin until he reached the woods, and there had been no arrangement between him and the employer for transportation, and no duty devolved on the employer to transport him to such place of work under the contract of em ployment, and he was killed by being thrownfrom the back of the truck while it was proceeding to the woods, the injury did not arise out of and in the course of the employment.
Error from Superior Court, Ware County; M. D. Dickerson, Judge.
Proceedings under the Workmen's Compensation Act by Lizzie Cooper, for the death of her husband, Cain Cooper, opposed by the Lumbermen's Mutual Casualty Company and another. An award of compensation was affirmed by the superior court, and the insurance carrier and the employer bring error.
Reversed.
This is a workmen's compensation case. The claim of Mrs. Cooper, wife of the deceased, was heard by a director of the department of industrial relations and an award made by him in favor of the claimant, and, on appeal to the full board, the award was affirmed. The case was appealed to the superior court, and the judge of that court affirmed the action of the full board in affirming the finding of the sole commissioner. The director who made the award found the following state of facts: (1) "That Cain Cooper, on October 30, 1931, on the day of the accident which resulted in his death, that he was an employee of the Okefenokee Lumber Company at $1 per day, or $6 per week, and that on account of his special knowledge he was instructed by the manager of the Okefenokee Lumber Company to go into the woods some twenty miles away and cut the logs at a certain length after they had been snaked out of the woods; and that this service was for the Okefenokee Lumber Company." This finding was admitted by both parties. The next finding is as follows: (2) "The evidence further shows, and the director finds that there was a general understanding that his employment was by the day and that the day began at a certain time, and that on or about that time, with the full knowledge and consent of the Okefenokee Lumber Company, he caught trucks going in that direction, which was his only means of transportation to the woods where the logs were to be cut; and that he rode on these trucks with the knowledge and consent of the Okefenokee Lumber Company." The testimony discloses that there was no arrangement between the deceased and his employer as to transportation to his place of work, and that it was left entirely to the discretion of the employee as to how he should go. As to the time the deceased began work, the uncontradicted testimony of the employer was as follows:
It was shown further that the deceased had no duties at the mill, nor was he employed as a mill hand.
Wilson, Bennett & Pedrick, of Waycross, for plaintiffs in error.
Parks, Garrett & McDonald, of Waycross, for defendant in error.
GUERRY, Judge (after stating the foregoing facts).
In determining the case at bar, we have to consider only one question: Did the injury which caused the death of the employee arise out of and in the course of his employment so as to be compensable under the Workmen's Compensation Act? Or perhaps the question may be better stated as to the particular facts of the case: "Does an injury to an employee, whose actual place of work is situated in woods twenty miles from the mill of his employer, where such employee comes to the mill each morning to catch a truck going to his place of work, this being done with the knowledge and consent of his employer, which truck does not belong to, nor is operated or controlled by, his employer, and where it is further shown that the employee's only duties were to be performed in the woods, that his time did not begin until he reached the woods, that there had been no arrangement made between the employee and employer for transportation, that no duty devolved on the employer to transport the employee to such place of work under the contract of employment, arise out of and in the course of his employ-ment where he is killed by being thrown from the back of the truck while it is proceeding to the woods?" The terms "out of" and "in the course of are not synonymous; both present separate and distinct conditions, although they are usually considered together as it is difficult to discuss one without touching upon the other. To entitle a workman to an award under our Workmen's Compensation Act (), the injury complained of must arise both "out of" and "in the course of" his employment. The two conditions coexist. They must be concurrent and simultaneous. One without the other will not sustain an award. New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 6S2, 118 S. E. 786; United States Fidelity & Guaranty Co. v. Waymick, 42 Ga. App. 177, 155 S. E. 366, 368; Employers' Liability Assurance Corp'n v. Montgomery, 45 Ga. App. 634, 165 S. E. 903. If an accident does not occur "in the course of" it cannot arise "out of" the employment (Fournier's Case, 120 Me. 236, 113 A. 270, 23 A. L. R. 1156), as it is difficult, if not impossible, to conceive of an injury arising out of and not also in the course of the employment. We think, therefore, that the determining question in this class of cases is whether the injury arose "in the course of" the employment. We shall first consider that question.
The general rule as laid down by our courts in determining the question whether the injury arose "in the course of" the employment is as follows: "An injury arises 'in the course of employment, ' within the meaning of the Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto." New Amsterdam Casualty Co. v. Sumrell, supra; United States Fidelity & Guaranty Co. v. Waymick, supra; Employers' Liability Assurance Corp'n v. Montgomery, supra. "The words 'in the course of the employment' relate to the time, place, and circumstances under which the accident takes place." New Amsterdam Casualty Co. v. Sumrell, supra. This rule seems to be sustained by the greater weight of foreign authorities. In Cox v. Kansas City Refining Co., 108 Kan. 320, 195 P. 863, 19 A. L. R. 90, it was said: "An accident happens in the course of employment within the meaning of the Workman's Compensation Act if it happens while the employee is at work in his employer's service." See, also, in this connection, Note Ann. Cas. 1918B, 769; Honnold on Workman's Compensation, vol. 1, p....
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