Thornton v. Hartford Acc. & Indem. Co.

• Decision Date: 08 January 1945
• Docket Number: 15007.
• Court: Georgia Supreme Court
• Parties: THORNTON v. HARTFORD ACCIDENT & INDEMNITY CO. et al.

32 S.E.2d 816

198 Ga. 786

THORNTON v. HARTFORD ACCIDENT & INDEMNITY CO. et al.

No. 15007.

Supreme Court of Georgia

January 8, 1945

Opinion Conformed to Jan. 25, 1945.

Syllabus by the Court.

Under the undisputed facts, a finding by the State Board of Workmen's Compensation that the accidental injury to the employee arose out of and in the course of his employment was authorized and demanded; and the judgment of the Court of Appeals, reversing the judgment of the superior court, which affirmed an award of compensation by the board, must be reversed.

This case is before the court on the grant of a certiorari to review a decision of the Court of Appeals (Hartford Accident & Indemnity Company v. Thornton, 31 S.E.2d 115) reversing a judgment of the superior court, which affirmed an award of compensation by the State Board of Workmen's Compensation.

The facts are not in dispute, the parties having entered into the following stipulation when the case was tried before a deputy director of the board: 'It is stipulated that the deceased checked in the Georgian Hotel between 3 and 5 p.m the evening of June 7, 1943, the Georgian Hotel being located at Athens, Georgia, which is in Clarke County, Georgia. Mr Thornton was a traveling salesman for the company, and Athens, Georgia, was a part of his territory that he serviced in connection with his employment by the company. That he was seen in the lobby of the hotel a few minutes after checking in, and then he crossed the street to the other side and walked about two doors west to the D. Jones Cafe, where he had dinner, staying in the cafe something like an hour, having his meal, and reading the newspaper during the course of the meal. It was raining at the time. As he was leaving the cafe he passed by the cashier's counter and spoke to her, the deceased and the cashier being acquainted, as it was the custom of the deceased to eat his meals at the D. Jones Cafe during the course of his stay in Athens, Georgia. On leaving the cafe he walked about two doors east to the point where he had previously crossed the street, which was in front of the Georgian Hotel where he was staying, and as he started back across the street to the hotel he slipped and fell and suffered a fractured skull, from which he died on June 11, 1943. He called on the Stone Printing Company and the Burman Printing Company after he had checked in the hotel, and it is agreed and understood he did not secure orders from either of the firms called upon, and he had returned to the hotel where he was seen about 6 o'clock preparatory to going across and eating his meal. He was received in the hospital about 7:45 p. m. after his accident and remained in the hospital until the day of his death, June 11, 1943, where he died as a result of his injury on June 7, 1943.' Before the stipulation was entered into, it was admitted that the decedent was paid a salary of $150 per month and expenses.

James C. Howard, Jr., of Atlanta, for plaintiff in error.

T. Elton Drake and Neely, Marshall & Greene, all of Atlanta, for defendants in error.

WYATT Justice.

1. The only question presented is whether the accidental injury sustained by the employee arose 'out of and in the course of' his employment within the meaning of the Code, § 114-102.

'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. * * * An accident arises 'out of' the employment, when it arises because of it, as when the employment is a contributing proximate cause. This and the conditions stated above must concur before the act can apply.' New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786; Employers's Liability Assurance Corp., Ltd., v. Montgomery, 45 Ga.App. 634, 165 S.E. 903; Liberty Mutual Insurance Co. v. Mangham, 56 Ga.App. 498, 193 S.E. 87.

The words, 'in the course of,' refer to the time, place, and circumstances under which the accident occurs. The employee in the instant case, at the time of the injury, was returning to a hotel (where he had previously registered) from a meal at a cafe almost directly across the street from the hotel; and he was doing something which a man employed as a traveling salesman may reasonably do within the time he is employed and at a place where he might reasonably be during that time. The fact that he had left the hotel and gone across the street for a meal would not necessarily preclude the relationship of employer and employee, nor take him outside the scope of his employment.

In Employers' Liability Assurance Corp. v. Pruitt, 63 Ga.App. 149, 151, 10 S.E.2d 275, 276, where a traveling salesman was injured by falling from a stool in a cafe where he had gone to eat a meal and procure information about a prospect, the court said: 'The scope of the employment of a traveling man is wider than that of arordinary employee. New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 691, 118 S.E. 786. 'It cannot be said that the employment is broken by mere intervals of leisure such as those taken for a meal. If an accident happened at such a time, there would be no break in the employment * * * unless the workman is doing something wholly foreign to his employment. Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger * * * are incidents to his employment and acts of service therein within the workmen's compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities * * * to procure drink, refreshments, food.' 1 Honnold's Workmen's Compensation, § 111, pp. 379-384. In * * * Railway Express Agency v. Shuttleworth, 61 Ga.App. 644, 7 S.E.2d 195, 196, the claimant's husband was employed by the defendant company as its special agent who traveled about to investigate loss and damages to shipments handled by the defendant company. He came to Atlanta, Georgia, from Nashville, Tennessee, to make such an investigation and to consult with the defendant's attorneys. It was necessary that he spend a night in Atlanta and unfortunately he chose the Terminal Hotel. The company always paid his expenses on such trips, including hotel lodging. The hotel burned in the early morning of the next day and he lost his life. In affirming the ruling of the superior court affirming the award of the Industrial Board, holding that the death arose out of, and in the course of, his employment and allowing compensation, this court said: 'A travelling salesman incurs the risk, by reason of his employment, necessary and incident to the requirements of such employment. * * * If the work of a travelling salesman or representative of an employer expose him to the hazards of the highway we can not see why he is not exposed to the same degree and in the same manner to the hazards of hotels and eating places, provided they are normal and necessary incidents to his employment. If an employee is required to be away from his home at night by the duties of his employment and his compensation covers the expense necessary and incident to spending the night away from home, any dangers or perils arising from and incident to such staying at a hotel 'the protection of the compensation act extends' to such employee while so engaged in the service of his employer.''

By the very nature of his work, a traveling salesman is not usually restricted to working on a schedule of hours. His employment is broader in scope than that of ordinary employees; his hours are more irregular, and usually longer, than those of general employees working in a fixed location; his conduct of his duties is of necessity left largely to his discretion; and his acts of ministration to himself, such as eating a meal, because of the nature of his work, are not usually limited to a certain period, or periods, of time daily. Consequently, we think, in a case involving an injury to a traveling salesman while going to or from, or while eating, a meal, such a strict interpretation of the phrase, 'arising out of and in the course of the employment,' as is sometimes made in cases involving employees injured during a regular noon hour, or similar periods, is too limited. In the latter class of cases the injuries are received during a definite period set apart as belonging exclusively to the employees, during which they may go where they wish and do what they please, subject to no orders from their employers and freed from all duty or responsibility with reference to their employment; and their employers do not usually pay the expenses of their meals.

A traveling salesman is taken away from his home or headquarters by his employment; and, because of the nature of his work, he usually can not return home each night. He must of necessity eat and sleep in various places in order to further the business of his employer; and the employer recognizes these necessities and usually pays the expenses of his lodging and meals, as was done in this case.

While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons. Such an employee is in continuous employment, day and night. This does not mean that he can not step aside from...