Zurich Ins. Co. v. Zerfass
| Decision Date | 04 October 1962 |
| Docket Number | No. 3,No. 39676,39676,3 |
| Citation | 128 S.E.2d 75,106 Ga.App. 714 |
| Parties | ZURICH INSURANCE COMPANY et al. v. Lilly G. ZERFASS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The traveling representative of a company required by his work to remain overnight away from home is, while going to or returning from a meal, performing an act incident to his employment, unless he steps aside from that employment for personal reasons. Where such an employee goes to a restaurant recommended to him and suffers an injury resulting in his death en route, the fact that he might have gone to other eating places nearer his overnight lodgings will not necessarily bar an award to his widow claimant in a workmen's compensation case, it being a question for the fact finding body as to whether he was still engaged in an act reasonably necessary or incident to his employment.
2. The evidence, which fails to show the cause of upset of the automobile which the claimant was driving at the time, does not demand a finding that his intoxication, if he was intoxicated at the time, proximately caused his injury and death so as to bar his widow from compensation.
3. There is in the record sufficient competent evidence to establish that injuries received by the employee in an automobile accident which arose out of and in the course of his employment were in fact a contributing proximate cause of his death, although the death followed closely upon unrelated surgical procedures undertaken some months later.
In this workmen's compensation death claim the deceased employee, Zerfass, vicepresident of the employer Latex Construction Company of Georgia, suffered critical injuries on April 7, 1959, as a result of an automobile accident on a trip from Atlanta to Spartanburg, S. C., with another employee on company business. Zerfass was driving the car when it overturned while the men were en route from a motel in Spartanburg where they had registered to a restaurant. The left side of his chest was crushed, causing pulmonary and probable heart trauma, and he also suffered a basilar skull fracture so severe that bloody spinal fluid oozed out the left ear because of intracranial pressure. He was hospitalized in Spartanburg for almost a month, then returned to Atlanta. Tests had suggested heart impairment not connected with the accident, and an Atlanta physician performed a heart catheterization on May 21, 1959, which was followed by partial paralysis. In October Zerfass underwent heart surgery for the correction of an established congenital atrial septal defect sufficient in itself to cause death if not corrected. The operation was successful and the patient appeared to be recovering well until he suffered a cerebral insufficiency two days later which caused his death. The Spartanburg physician testified that 'although we noted the heart trouble, our initial impression was that his brain damage was the more severe of the two.' The Atlanta surgeon testified: Autopsy revealed a large area of brain infarction which 'presented a characteristic picture of an old infarction which had been dated back, the color, which was greenish rather than bright red, which would help to date this thing back months * * * would make me feel that he had damaged his brain at the time of the accident and this was a result of the compromise blood flow now to that area of his brain.'
An award in favor of the widow claimant was affirmed by the board, and this was affirmed on appeal by the Judge of the Superior Court of Fulton County.
Woodruff, Latimer, Savell, Lane & Williams, John M. Williams, Atlanta, for plaintiff in error.
Ward, Brooks & Williams, Cullen M. Ward, Osgood O. Williams, Atlanta, for defendant in error.
1. Plaintiff in error first contends that the evidence demands a finding the deceased's injury was the result of his wilful misconduct in driving his automobile while under the influence of intoxicants. In this connection it appears that Zerfass and his fellow employee, Rankin, on arrival at Spartanburg first registered at a motel on the western outskirts of the city, attended to the company business which had brought them there, returned to the motel about 6 p. m., discussed business and had five to seven drinks of Bourbon and Coca-Cola, and about 9 p. m. inquired about a restaurant where they could get a steak supper. They were advised that the restaurant across the street served short orders and that they could breakfast there, but were recommended to a restaurant in the north part of town for the steak. Zerfass, attempting to follow directions, lost his way. Exactly how the car overturned does not appear, but Rankin remembered the sound of gravel and that he threw his hands in front of his face in the apparent knowledeg they were about to hit something. Rankin testified he and Zerfass had frequently had drinks together; that on this occasion he noticed nothing unusual about him; he appeared to have his faculties about him; it was customary for him to have several drinks at night, that as to whether the accident would have happened without the drinking, 'that is a hard question to answer, but from past experience of my own drinking and my personal opinion if we hadn't been drinking the accident might not have happened, but that doesn't necessarily mean drinking was the cause of it.'
General Acc. Fire & Life Assurance Corp., Ltd. v. Prescott, 80 Ga.App. 421(2), 56 S.E.2d 137; Ocean Accident & Guarantee Co. v. Lovern, 90 Ga.App. 708, 712, 83 S.E.2d 862. Except for hearsay evidence, which has no probative value even when admitted without objection (Crawley v. Selby, 208 Ga 530, 67 S.E.2d 775) there is no indication in the record as to how the wreck occurred and whether it was due to the driver's fault or otherwise. ...
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