Lumbermens Mut. Cas. Co. v. Babb

• Decision Date: 20 March 1942
• Docket Number: 29305.
• Citation: 19 S.E.2d 550,67 Ga.App. 161
• Parties: LUMBERMENS MUT. CASUALTY CO. et al. v. BABB.
• Court: Georgia Court of Appeals

19 S.E.2d 550

67 Ga.App. 161

LUMBERMENS MUT. CASUALTY CO. et al. v. BABB.

No. 29305.

Court of Appeals of Georgia, Division No. 2.

March 20, 1942

Rehearing Denied April 2, 1942.

Syllabus by the Court.

Gambrell & White, of Atlanta, for plaintiffs in error.

Chas G. Bruce, of Atlanta, and E. W. Maynard, of Macon, for defendant in error.

STEPHENS Presiding Judge.

On January 6, 1940, J. O. Babb filed a claim for compensation with the Industrial Board in which he alleged that on January 14, 1939, he sustained an accidental injury which was compensable under the workmen's compensation law. Hearings on the claim were held before Director Stanley and Deputy-Director Hartley, and on September 9, 1940, Director Monroe awarded compensation finding that the claimant had, on the above date, sustained an accidental injury which arose out of and in the course of his employment as an insurance salesman by Associated Mutuals Incorporated. An appeal from this award to Fulton superior court was entered on September 24, 1940, by the employer and insurance carrier, and on March 8, 1941, an order was rendered by Judge Walter C. Hendrix recommitting the case to the Industrial Board in order that a statement of findings on the question of subrogation might be formulated. All other issues in the case were retained by the superior court without decision pending the further action of the Industrial Board. On April 21, 1941, an additional hearing was held by Director Monroe who, on May 14, 1941, rendered an award denying the right of subrogation to the employer. The employer and insurance carrier appealed from this finding to the superior court, and on July 14, 1941, identical orders were rendered in both appeals overruling them and sustaining the awards. The employer and insurance carrier excepted.

The employer contends that the finding of September 9, 1940, that the claimant had sustained an accidental injury, which arose out of and in the course of his employment, and awarding compensation, was contrary to law in that it appeared from the evidence adduced before the Industrial Board that the claimant's injury was caused by an accident which did not arise out and in the course of his employment and was therefore not compensable. The claimant was an insurance salesman, employed at the time of his injury by the Associated Mutuals Incorporated. The accident occurred about 5 p. m. on Saturday January 14, 1940. The regular working hours of the claimant for the week ceased at noon on Saturday of each week. Evidence to support the finding of fact of Director Monroe that the claimant's injury was compensable in that it resulted from an accident which arose out of and in the course of claimant's employment was to the following effect: "Claimant's work required him to contact customers or prospects to sell and collect for insurance; and therefore he was required to work outside the office of the company. *** On January 14, 1939, at about 5 p. m. claimant left his home at 206 East Yale Street in College Park, Georgia, with the intention of going to the business section of the town to contact a prospect and deliver an insurance policy. Claimant had sold a policy of insurance to one W. P. Oxford, who operated a grocery store in College Park, and had made an appointment with Oxford's father to contact him at the store late on the afternoon of January 14. Claimant stopped at the store, which was about a block from his home, and delivered the policy of insurance to W. P. Oxford. Oxford told claimant that he did not have any money with which to pay the premium but that his father had gone to a barber shop on the west side of town, and if claimant would go there his father would probably pay the premium. Claimant then left the store and drove his automobile across the John Wesley railway crossing, which was directly in front of the store, crossing over on the west side of the railway tracks and onto West Main Street. Claimant stopped at the barber shop and inquired about Oxford and found that he had already left the barber shop. Claimant then went into a ten-cent store and made a purchase of a Chinese checker board and some fig bars. He then got into his automobile for the purpose of returning to the store to contact Oxford and drove south along Main Street to John Wesley Avenue and turned left to cross the John Wesley railway crossing for the purpose of going to the store which was just beyond the crossing, when an approaching train struck his automobile and injured the claimant for which injury he now claims compensation." The "claimant, who was a traveling insurance salesman, had no regular hours of work;" he "reported at the office of the company early in the morning, and he then left the office and traveled around contacting customers, and had no particular hour for quitting work;" he "did a great deal of his work at night;" that the "accident occurred on a Saturday afternoon, and the office of the company usually closed at 1:00 o'clock on Saturday; but the claimant was not required to report back at the office before closing after having reported early in the morning, and he sold insurance on Saturday afternoons just the same as an [on] other afternoons."

The claimant contended that he left his home for the purpose of going to the business section of College Park to deliver a policy of insurance and collect the premium therefor, that he delivered the policy but was unable to collect the premium at that time; that the person to whom h...