Ocean Acc. & Guarantee Corp. v. Farr
| Decision Date | 13 February 1935 |
| Docket Number | 9826. |
| Citation | 178 S.E. 728,180 Ga. 266 |
| Parties | OCEAN ACCIDENT & GUARANTEE CORPORATION et al. v. FARR. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Upon careful review of all the evidence introduced before the Department of Industrial Relations, upon which they held that the accident did not arise out of and in the course of employment of the employee, this court is of the opinion that this finding was not without evidence to support it, and that the department was authorized, in view of the law which makes their finding on the facts conclusive, to disallow the employee's claim for compensation; and the judgment of the Court of Appeals, affirming the judgment of the superior court reversing the findings of the Department of Industrial Relations, must be reversed.
Certiorari to Court of Appeals of Georgia.
Proceeding under the Workmen's Compensation Act by J. M. Farr claimant, opposed by the Ocean Accident & Guarantee Corporation, insurer, and another. Judgment of the superior court reversing an award of the Department of Industrial Relations was affirmed by the Court of Appeals (47 Ga.App 110, 169 S.E. 684), and the insurer and the employer bring certiorari.
Reversed.
J. M Farr, as employee of Seckinger & Garwes, made claim before the Department of Industrial Relations for compensation on account of an alleged injury. The claim was resisted and defended on the ground that the injury did not arise out of and in the course of the claimant's employment. At a formal trial, after hearing evidence, the director of the Department of Industrial Relations sustained the above defense and found against the claim for compensation. On appeal to the full board of the Department of Industrial Relations, the decision of the director was sustained. The claimant entered an appeal to the superior court. The judge of the superior court, on review of the evidence, reversed the judgment refusing compensation. On writ of error the Court of Appeals affirmed the judgment of the superior court. The case is now for decision by the Supreme Court on writ of certiorari to the Court of Appeals. The exact question is Did the evidence authorize the finding by the Department of Industrial Relations that the injury to the claimant did not arise out of and in the course of the employment? The evidence showed that on the day in question Farr, a steam-fitter and plumber having in charge as foreman two other men, was engaged for his employers, Seckinger & Garwes, in renovating certain boilers in the basement of the Mendel Realty Building in Savannah, Ga.
Farr on direct examination described the incident thus: "I was working there, and at that time we all knocked off to get lunch; and it was the custom to carry lunch with me, because we had only thirty minutes for lunch; and Mr. Merritt and Mr. Turner [the two men in his charge] went to dinner, and I washed my hands on the first floor and returned to the basement to get my lunch and eat it there, because it was warm and I was wet with perspiration; and on the way down the second step from the bottom, I slipped and fell."
Cross-examination:
"Q. You say this was on March 2, 1931? A. Yes sir.
Q. At what time? A. At noon time between twelve and twelve-thirty.
Q. And where had you been just prior to your fall? A. I came up and went to wash my hands. They were dirty, and I went up to wash my hands to eat my lunch.
Q. Where did you go to wash them? A. Up on the next floor.
Q. In the Mendel Building? A. Yes sir.
Q. And then you returned to the basement? A. Yes sir.
Q. And that is where you slipped and fell, while you were going after your lunch? A. Yes sir."
Seckinger, one of the members of the employer firm, gave answer to questions as follows:
At a subsequent examination Farr gave the following testimony: "Q. At what time did your lunch hour begin on the date you were hurt? A. My lunch began at one o'clock.
Q. How many minutes did you have for lunch? A. Thirty minutes I had for lunch.
Q. Where did you always eat it? A. Customarily I always carried it and ate it on the job.
Q. How long had that custom been going on? A. For many years.
Q. Why was it necessary for you to eat your lunch on the job? A. Because I could not make it to where I lived and back to the job on due time.
Q. Did your employers, Seckinger and Garwes, know of this custom? A. Yes, sir.
Q. Did they know of its going along for many years? A. Yes, sir.
Q. Will you state whether or not they approved it or objected? A. They never objected. On one occasion I was late, seven years ago, in getting back from my dinner, and when I got back Mr. Seckinger told me I better make some arrangements to be back on time.
Q. That was the time you, with the approval of your employer, began the custom of eating on the job during the thirty-minute lunch period? A. Yes, sir.
Q. Well, now, during these many years during which this custom prevailed, will you state whether Mr. Seckinger or Mr. Garwes would some time come to the job and see you eating your lunch while on the job? A. Quite a number of times he would not get to my job until about the noon hour, and he would come by and converse about what matters were to be done on the job and how it should be run, etc.
Q. Now, during the lunch period, will you state whether or not you continued on duty although it was your lunch period? A. Many times. A job like that, it was urgent that I always ate lunch and returned back to work as quickly as possible, and on this occasion the building was out of steam, and we had both boilers torn down, and that was my intention, as we had done before in the interest of Seckinger & Garwes' firm, I intended to return back as quickly as possible to get the boilers back in place to give heat on the job.
Q. Where were you eating your lunch? A. In the basement; in the boiler-room.
Q. Right at the spot where you were doing the work? A. Right where the boilers were situated.
Q. How far away? A. Not more than three feet, something like that, from where I sat and ate. I carried my lunch down in the morning and had it left in the boiler-room; always carried lunch with me where I had my coat hanging."
Cross-examination:
"Q. You were actually on duty during this period? A. Yes, sir.
Q. During the lunch period what had been your custom and your intention to do during the lunch period while you were supposed to be eating? A. During that time I had tools on the job which I could not very well leave without being locked up. I could have got the janitor and had him lock the door; but it being customary that I always ate on the job, I never did get him to lock the door. If I had gone away he possibly would have opened the door and let some one in that could have taken the tools away, or something of that kind.
Q. What interference could he or any other intruder have made with the work which you were doing? A. It could have been possible that they could have turned the water on, or something of that kind; some one could have come in and interfered with the work, from which I would have been delayed.
Q. That is why you were eating your lunch on the job? A. I remained on the job as was customary. It was my intention, at the time I fell and got hurt, of going to work as quickly as I got through.
Q. You were there for the protection of your work and your tools and to avoid interference? A. At the interest of Seckinger & Garwes' firm.
Q. Now, what were your intentions immediately after you finished your lunch and during your lunch period, relative to any disconnections on the boiler? A. To finish the old sections, get them out and replace with new sections.
Q. Why were you going to do that during lunch period? A. So as to advance the job and get through quickly.
Q. Were you alone at the time? A. At that time they had taken the truck and gone to lunch.
Q. What were those tools on the...
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