U.S. Fidelity & Guaranty Co. v. Hamlin
| Decision Date | 05 September 1958 |
| Docket Number | No. 1,No. 37223,37223,1 |
| Citation | 105 S.E.2d 481,98 Ga.App. 167 |
| Court | Georgia Court of Appeals |
| Parties | U. S. FIDELITY & GUARANTY COMPANY et al. v. Velesta B. HAMLIN |
Syllabus by the court
1. Where a servant is obliged under his contract of employment to render whatever service is required of him in carrying on the business about which he is employed, an act done at the suggestion of his employer for the benefit of the business and to carry out the employer's policy and plan of conducting the business is within the scope of the employee's employment.
2. An act connected with the business about which the employee is employed is no less within the scope of his employment, because the manner, time, and circumstances under which such act is to be performed are left entirely to his discretion.
3. If at the moment the employee is accidently injured he is engaged in the regular duties of his employment the accident is one occurring in the course and within the scope of his employment.
Mrs. Velesta B. Hamlin, widow of Herbert C. Hamlin, deceased employee, filed a claim for compensation with the State Board of Workmen's Compensation against the deceased's employer, Hardy Couch Tractor Service and U. S. Fidelity & Guaranty Company, insurance carrier.
The parties agreed that Herbert C. Hamlin was an employee of Hardy Couch Tractor Service on June 25, 1957, at an average weekly wage of $65; that Mrs. Velesta B. Hamlin is his widow, and that she and her minor daughter, Beverly Starr Hamlin, are his sole dependants; that Herbert C. Hamlin met his death on June 25, 1957 in Schley County, Georgia, by accident. The arguments of counsel narrow the issues in the case so that the sole question for decision is whether or not the injury and death of this employee arose out of and in the course of his employment with Hardy Couch Tractor Service.
On the hearing of the case all of the evidence on this issue was the testimony of the claimant and employer. Mrs. Hamlin, the claimant, testified in answer to questions propounded:
'A. Well, we were coming along on Highway 19. I was asleep at the time--at least, I was half asleep, half awake, and I heard my husband talking to two men, and I woke up and asked him what was wrong, and he said they were having tire trouble and wanted to borrow a jack. They said they had one but it was--must have been a cheap one because it wouldn't hold up the weight of the truck so they could change the tires, and I asked him if he wanted to stop and help them and he said no, that he would rather to go on but he said he didn't want to leave them there in trouble, like they were, so we pulled up--the other truck was going north.
'Q. You mean, the truck that had the flat tire? A. Yes, sir, and we were coming home, headed south.
'Q. Was the truck that had the flat tire headed in the same direction on the highway you and your husband were? A. No, sir, headed for Atlanta.
'Q. Headed from the direction of where you and your husband were going toward Ellaville? A. Yes, sir.
'Q. And you stopped, and your husband was out assisting him--standing by holding him a light, or something, during the process trying to arrange the tire trouble on the other truck, is that right? A. yes.
'Q. Where were you? A. I was helping hold the light too. We both had a flashlight. We had ours and one of Mr. Couch's. Well we were standing there holding the lights and I heard the truck coming, I couldn't see it, because it had to go over a hill. As soon as I heard the truck I don't know what made me see it, but I told them, 'there is a truck coming' and so he went up with his light. My husband--to show the man, you know, that we were there with the flashlight. He held it down--went around, you know, waiving it, like that, and I had to run around to the side of Mr. Couch's truck and as soon as we saw the truck hit the top of the hill it had bright lights on it--just bright as they could be, and I don't know, but I guess we both knew something was going to happen, because I don't know how fast the truck was going, but it was going a terrific speed and we saw it coming right toward the truck and my husband--last thing he said was for me to run.
'
'
Mr. Hardy Couch testified:
'Q. And you operate a tractor repair service in Albany? A. Yes, sir.
'Q. The deceased, Mr. Hamlin, was one of your mechanic's in your employ? A. Yes, sir.
'Q. What were the nature of his duties in your employment, Mr. Couch? A. Well, that's kind of hard to explain, I operate a tractor repair business, and, actually, not a mechanical shop--more tractor repair. Only mechanical part involved is our own equipment, and we prepare pin bushes out of tracks, and he was, I guess, track mechanic. No specific duties. If I wanted him to help take bolts out--anything that come handy to do.
'Q. At the time he was killed as has been related here was he on a mission for you to Atlanta? A. Yes, sir, I sent him to Atlanta to pick up some parts.
'Q. He was driving your truck? A. Yes, sir.
'Q. And, you had specifically directed him to go to Atlanta for this purpose? A. That's correct.
'Q. At the time he was killed was he on one of the through routes from Atlanta to Albany? A. I would say he was, three routes we go and any one of them three is all right to go.
'Q. If he was killed on the highway between Ellaville and Butler, he was on one of the direct and common routes between Atlanta and Albany? A. That's right.
'Q. Mr. Couch, do you have any policy with reference to what your employees should do in the event they saw a motorist apparently having trouble on the highway? A. My employees, most of the time--I will say, all of them have no specific instructions, but we have this policy, such as stopping, helping on the highway--see if they can stop and help a motorist, I want them to use their own discretion to stop and help them at their own discretion.
'Q. Do you have an understanding with your employees that you thought it was good business? A. Whether I discussed it as being good business, or not, I couldn't say, but I said any time they could render service, they had my permission to stop and help them and we have winch for that, to help them any way we could.
'Q. In signed statement 'wrench' should have been 'winch'? A. Yes, seems that was a typographical error.
'Q. That's a mechanical appliance that rolls up a wire cable? A. We have on numerous occasions found people slipped off the road and stuck and we taken this winch referred to a 'wrench' and taken cab and pulled them out on different occasions.
'Q. As his employer, did you approve or disapprove of his conduct in undertaking to render aid to this motorist he was rendering aid to? A. Far as helping--anything--he had my permission to help anyone at his discretion.
'Q. If you had been present, you would not have told him not to render aid to that party? A. No, sir.
'Q. You probably would have participated in the aid yourself? A. Yes, sir.
'Q. You couldn't say you would have told him, or wouldn't, unless you had been there and seen the condition?
A. There are varying conditions I leave to the employee's discretion, but he had my permission.
'Q. You thought that it was a humanitarian policy to some extent, and another extent, it might be good business is that right? A. That's correct.
'Q. Mr. Couch, had you ever instructed your employees, specifically, to stop and render aid to anyone on the highway? A. No, sir.
'Q. Had any of them ever asked you about stopping? A. Well, let me--I have never been with them. In other words, I have given the reasons, we had talked about any time they could help anybody. In fact, the only specific instructions I gave them was not to push anybody with a truck, use the winch to pull them out, but don't push them with my truck. Those are the only specific instructions I ever give them.
'Q. You were doing what anybody else, with facilities, do to aid a traveler on the highway? A. That's correct.
'Q. You were doing it in connection with your business? A. No, sir.
'Q. You didn't hire Mr. Hamlin to help people on the highway? A. Hired him to do anything I though necessary to do.
'Q. But, you hired him, specifically as a mechanic in connection with your tractor repair business? A. In hiring him, as I say, didn't give any specific instructions, they do anything connected with my work, we had discussed I though it was good policy to stop and help them at their discretion, but didn't give any specific instructions to stop and help anybody, but we did discuss it, and with all them driving the trucks--anything to do with trucks--that they could stop and help anybody they could.
'Q. You had no objections to a man rendering aid to anybody in trouble on the highway? A. That is correct.
'Q. If he could do it safely? A. They had my permission to use jacks and winches to do it.
'Q. To do it safely? A. Yes, sir.
'Q. But that wasn't part of your business? A. No, we are not in the wrecking business.
'Q. You are not in the auto repair...
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