Travelers Ins. Co. v. Smith, 35270

• Decision Date: 02 December 1954
• Docket Number: No. 2,No. 35270,35270,2
• Citation: 91 Ga.App. 305,85 S.E.2d 484
• Parties: TRAVELERS INSURANCE COMPANY et al. v. P. J. SMITH
• Court: Georgia Court of Appeals

Page 484

85 S.E.2d 484

91 Ga.App. 305

TRAVELERS INSURANCE COMPANY et al. v. P. J. SMITH.

No. 35270.

Court of Appeals of Georgia, Division No. 2.

Dec. 2, 1954.

Rehearing Denied Dec. 17, 1954.

Syllabus by the Court.

The superior court did not err in reversing the award of the State Board of Workmen's Compensation.

This is a workmen's compensation case. P. J. Smith (whom we shall hereinafter call the claimant) was employed by Macon Telegraph Publishing Company (which we shall call the employer). Travelers Insurance Company will be called the carrier. The claimant filed a claim for injuries sustained while employed by the employer in its composing room in Macon, Georgia. The single director found an award in favor of the employer and carrier. This award was appealed to the full board, who sustained the award. Then the award was appealed to the Superior Court of Bibb County. That Court reversed the award, in effect on the ground that the award was contrary to law under the evidence, and that the evidence as set out in the record demanded a finding for the plaintiff. It was ordered that the case be returned to the State Board of Workmen's Compensation for a judgment not inconsistent with the judgment of the superior court. The board in its findings of fact and award makes a clear-cut question as to whether the board was authorized, under the evidence, to make the award.

The findings of fact and the award are as follows: 'This claim has raised a question which has been of much concern to the undersigned Hearing Director, and briefs of counsel have been carefully studied, and an exhaustive study of authorities has been made in an effort to resolve the question.

'The facts are these: I find that the claimant, Phillip J. Smith, was employed by the Macon Telegraph Publishing Company on March 7, 1952, at an average weekly wage of $101, and that he regularly went to work at 4:30 p. m., had a 'lunch hour' from 8:30 p. m., to 9 p. m., and got off work at 1:30 a. m. I find that the employee worked in the composing room, which is in the rear of the building on the second floor, and that the employees working in said room normally gained access to it by using a flight of stairs opening on the outside of the building, and leading up to the second floor, and by then walking through another department and into the composing room in the rear of the building. I find that on the night of March 7, 1952, the claimant in this case had left for 'lunch' at the regular time, 8:30 p. m. and that he was required to be back on the job at 9 o'clock p. m., and that three or four minutes before nine he had entered the employer's building and was climbing the flight of stairs which lead up toward his place of work, and that when he was three or four steps from the top his foot slipped and he fell, injuring his back. I find that from 8:30 p. m. to 9 p. m. the employee was free to go anywhere he wished during his lunch hour, but he was required to be back at his place of work at 9 o'clock p. m.

'The main question for decision is whether or not the employee's accident arose out of and in the course of his employment, and the difficulty in deciding this question has arisen from an effort on the part of the undersigned to reconcile the 'preparation for work' cases, and the 'lunch hour' and 'rest period' cases. In General Accident Fire & Life Assurance Corporation v. Worley, 86 Ga.App. 794 , we find that following language: 'In Jackson v. Lumberman's Mutual Casualty Company, 33 Ga.App. 35, 125 S.E. 515, the court quotes the following with approval from the award entered up by the commission: 'The Industrial Commission is thoroughly committed to the principle that a reasonable time must ensue after an employee reaches an employer's premises prior to the time work should begin, and a reasonable time after work ends before leaving his employer's premises, during which time an accident occurring shall be construed as arising out of and in the same course of the employment. It is not necessary here, however, to decide what constitutes a reasonable time. The Industrial Commission holds that two hours is not a reasonable time.''

'Other cases have clearly established this principle in this State. Williams v. American Mutual Liability Insurance Company, 72 Ga.App. 205 : Employers Insurance Company of Alabama v. Bass, 81 Ga.App. 306 ; Maryland Casualty Company v. Sanders, 49 Ga.App. 600 .

'But a clear distinction appears to have been made between preparation to begin work initially when coming on the job in the morning, and preparation to resume work when returning from the lunch hour. The reason for the distinction is not as clear to me as the fact that the distinction exists, but the cases holding that an accident does not arise out of and in the course of the employment while the employee is on a lunch hour or rest period are equally as strong and uniform as those establishing the preparation for work principle. Employers Mutual Liability Assurance Corporation v. Woodward, 53 Ga.App. 778 ; Aetna Casualty & Surety Company v. Honea, 71 Ga.App. 569 ; Ocean Accident & Guaranty Corporation v. Farr, 180 Ga. 266 ; Hanson v. Globe Indemnity Company, 85 Ga.App. 179 .

'It has been submitted by able counsel for the defendants that the reasoning behind the lunch hour and rest period cases is that the employer has no 'control' over the employee, and the employee is completely free and on his own during such periods. This principle appears to have been established as a matter of law in the Hanson case, supra. It has further been submitted that in most of the 'preparation for work' cases, the appellate courts have merely affirmed a finding of fact by the Board that the accident arose out of and in the course of the employment, where such a finding was supported by evidence, and that in most of these cases the employee was required by some rule or necessity of employment to be on the premises and at the place of work before actually beginning work.

'In the instant case, the employee was not required to be back at his place of work until 9 o'clock p. m. He was injured three or four minutes before nine, while walking up the steps toward his place of work.

'The suggestion that if this same accident had occurred at 4:27 p. m. it would have been compensable, but that because it happened at 8:57 p. m., it is not compensable presents at first sight a somewhat misleading situation that would appear to be difficult to reconcile. But it is not the prerogative of this Board to argue the reasonableness of the law where the law is plain and in the face of the overwhelming authorities which have clearly thrown a protective cloak around the lunch hour and the rest period there is no alternative but to hold as a matter of law that the accident in this case having occurred while the employee was on his lunch hour did not arise out of and in the course of the employment and compensation must therefore be denied.

'Award: Wherefore, based on the foregoing findings of fact and conclusions of law, it is the award of the undersigned Deputy Director that compensation be and the same is hereby denied.'

Marshall, Greene & Neely, Burt DeRieux, Atlanta, for plaintiffs in error.

Edward F. Taylor, Macon, for defendant in error.

GARDNER, Presiding Judge.

Where the facts in a workmen's compensation case are undisputed, whether the injury arose out of and in the course of the employment is a question of law. Thornton v. Hartford Accident & Indemnity Co., 198 Ga. 786, 795, 32 S.E.2d 816. The facts here are not in dispute and are to the...