Wilkie v. Travelers Ins. Co.

• Decision Date: 28 October 1971
• Docket Number: No. 3,No. 46187,46187,3
• Citation: 124 Ga.App. 714,185 S.E.2d 783
• Parties: Virginia WILKIE v. TRAVELERS INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 783

185 S.E.2d 783

124 Ga.App. 714

Virginia WILKIE v. TRAVELERS INSURANCE COMPANY et al.

No. 46187.

Court of Appeals of Georgia, Division No. 3.

Oct. 28, 1971.

Albert P. Feldman, Atlanta, for appellant.

Swift, Currie, McGhee & Hiers, W. Wray Eckl, Hunter S. Allen, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court.

EBERHARDT, Judge.

In this workmen's compensation case claimant was injured in a fall while on her way to the restroom on the employer's premises during a ten-minute rest break. The employer had scheduled, by department, two ten-minute rest breaks each workday, one in the morning and one in the afternoon. A buzzer sounding throughout the location signaled the commencement and end of each break. The breaks were 'personal time' and during this period the employees were free to do whatever they wished, including leaving the premises, so long as they were back at their work station at the end of the break. These breaks were included within the eight-hour day for which the employees were compensated, compensation also being provided for sick leave, holidays and vacations. The rest breaks were not the only times that employees could use the restroom; they could go whenever necessary.

On the occasion in question the buzzer signaled the commencement of a rest break, and claimant started up the aisle toward the restroom when she fell over some boards in the isle and was injured. The only contested issue before the deputy director was whether the injury arose out of and in the course of the employment. Compensation was denied on this basis, and the award was affirmed by the full board, one director dissenting. The superior court likewise affirmed, and claimant appeals. Held:

Were this an open question, we might be disposed to hold that time set aside by an employer as a 'rest break' and for the performance of functions necessary for the health and comfort of an employee on the job should be considered as incidental to the employment, and that injuries sustained while engaged in such performance should be deemed compensable as arising out of and in the course of employment. However, in 'lunch break' and 'rest break' cases, both the Supreme Court and this court have laid down the rule that where the employee is free to use the time as he chooses so that it is personal to him, an injury occurring during this time arises out of his individual pursuit and not out of his employment. Ocean Acc. & Guarantee Corp. v. Farr, 180 Ga. 266, 178 S.E. 728; Austin v. General Acc., Fire & Life Assur. Corp., 56 Ga.App. 481, 193 S.E. 86; Aetna Cas. & Sur. Co. v. Honea, 71 Ga.App. 569, 31 S.E.2d 421; Gay v. Aetna Cas. & Sur. Co., 72 Ga.App. 122, 33 S.E.2d 109; Hanson v. Globe Indem. Co., 85 Ga.App. 179, 68 S.E.2d 179; McCord v. Employers Liab. Assur. Corp., 96 Ga.App. 35, 99 S.E.2d 327; Travelers Ins. Co. v. Mimbs, 120 Ga.App. 599, 600, 171 S.E.2d 659. See also United States Fid. & Guar. Co. v. Skinner, 188 Ga. 823, 5 S.E.2d 9; Ralph v. Great American Indem. Co., 70 Ga.App. 115, 27 S.E.2d 756. Of course if the employee sustains an injury while conducting the employer's business or following job-related instructions during the 'break,' the injury is compensable. American Hardware Mut. Ins. Co. v. Burt, 103 Ga.App. 811, 120 S.E.2d 797, where the employee, a delivery boy, was available and subject to instructions for taking and picking up or making deliveries either on his way home or coming back from supper on the employer's motor scooter; Employers Mut. Liab. Ins. Co. v. Carlan, 104 Ga.App. 170, 121 S.E.2d 316, where the employee was enroute while on a 'rest break' to telephone the employer's personnel department in regard to job assignments, as the employer had instructed him to do. Commenting on these two cases, Dean Feild observes: 'In the (Burt case), the rule about going to lunch has not been ameliorated as the facts firmly established that 'scooter-time' was 'working-time.' And the same observation may be made as to the Carlan case which involved a ten-minute rest period.' 14 Mercer L.Rev. 244, 255.

Claimant here points to a union contract which provides that 'Eight hours, excluding a lunch period, will constitute a standard day's work.' ¹ It is argued that since the break periods fall within the eight-hour workday, the employer has the right to control the employee's activities during the breaks. While the right to control, as distinguished from exercise of the right, may be indicative of a master-servant relationship, the test utilized by the Supreme Court and this court in the 'break' cases is whether the employer has in fact ceased the exercise of the right and released time to the employee to follow his individual pursuits. Compare Ocean Acc. & Guarantee Corp. v. Farr, 180 Ga. 266, 178 S.E. 728, supra, with Holman v. American Auto. Ins. Co., 201 Ga. 454, 39 S.E.2d 850. Tests applicable to the master-servant relationship, while perhaps useful to 'in the course of' problems, are not controlling in 'arising out of' cases...