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TRAVELERS INSURANCE CO. et al. v. SMITH.
35270.
Workmen's compensation. Before Judge Atkinson. Bibb Superior Court. April 27, 1954.
GARDNER, P. J.
The superior court did not err in revering 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, which 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 led 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 the following language: 'In Jackson v. Lumbermen's Mutual Casualty Company, 33 Ga. App. 35, 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 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. 78; 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.
"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."
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 &c. Co., 198 Ga. 786, 795 (32 S. E. 2d 816). The facts here are not in dispute, and are to the effect that the injured employee had approximately 20 minutes for eating between 8:30 and 9 p.m., that he had eaten and was on his way back to work, ascending a stairway in a building owned by his employer in the direction of, and about 65 or 70 feet from, his employment station, and that the fall occurred three or four minutes before 9, when he should have been back at that particular desk or station. From this it follows that for the employee to have returned to the place he was supposed to be at the time he was supposed to be there to resume his duties--that is, 9 p.m. in the composing room--it was necessary for him to be in the place where he was injured at the time he was injured--that is, a minute or two before nine, about 60 or 70 feet away from his desk--the evidence also showing that the usual and normal route of return from lunch, or the usual and normal route of approach at the time of assuming the duties of employment, was up these stairs, and through this room, just as the employee was proceeding.
The director hearing this case set out in his award the following rule of law quoted in General Accident Fire &c. Corp. v. Worley, 86 Ga. App. 794 (72 S. E. 2d 560) from Jackson v. Lumberman's Mutual Casualty Co., 33 Ga. App. 35 (125 S. E. 515): "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 course of the employment." See also Williams v. American Mutual Liability Ins. Co., 72 Ga. App. 205 (33 S. E. 2d 451); Employers Ins. Co. v. Bass, 81 Ga. App. 306 (58 S. E. 2d 516); Maryland Casualty Co. v. Sanders, 49 Ga. App. 600 (176 S. E. 104). Thus, under the holding in Ocean Accident &c. Corp. v. Farr, 180 Ga. 266 (178 S. E. 728), where one is injured while en route from his place of employment to another place in the building where he intends to eat his lunch, the accident arises in the course of, but not out of, the employment. Where, however--under the authority of the Worley and Jackson cases, supra--one is on his employer's premises, and on his way to commence work, within a reasonable time prior to the time work begins, and he is injured, the injury results both in the course of and out of the employment.
The able deputy director hearing this case noted this rule of law, but felt constrained to reach the decision that the claimant was not entitled to compensation, on the theory that a different rule applied to identical sets of circumstances, depending upon whether the claimant was on his way to work in the morning (in which case he might recover) or was returning from lunch (in which case he might not). There is concededly, under certain circumstances, a conflict in our Workmen's Compensation Law, relating to this time element, but we do not believe that conflict exists here, for the reason that the theory on which compensation is refused in the lunch-hour cases, cited in the director's findings of fact, is that the employee is about to depart from the employer's premises to attend to something purely personal to himself.
In Aetna Casualty &c. Co. v. Honea, 71 Ga. App. 569 (1) (31 S. E. 2d 421), the claimant was at the beginning of her lunch hour and was on her way from her work station to a beauty parlor on a matter of personal business. In Hanson v. Globe Indemnity Co., 85 Ga. App. 179 (68 S. E. 2d 179), the claimant was at the beginning of her rest period, on her way from her work station to her own affairs at the water cooler and rest room. In Ocean Accident &c. Corp. v. Farr, supra, the claimant was on his way from the place where he had washed his hands to the place where he was going to eat his lunch, matters personal to himself.
App. 481 (193 S. E. 86), the claimant was on her way to begin her rest period. Independence Indemnity Co. v. Sprayberry, 171 Ga. 565 (156 S. E. 230) (reversing the same case, 41 Ga. App. 133, 152 S. E. 125), was based on the sole ground that, where under one phase of the evidence the hearing director was authorized to deny compensation on the ground that the claimant, who was employed by a hotel, but who was on her way to her room at night to get a coat in order to go riding with some of the guests, was not engaged in any duty in the course of her employment, and that the Court of Appeals therefore erred in reversing the award finding in favor of the employer. Likewise, in Employers Liability Assurance Corp. v. Woodward, 53 Ga. App. 778 (187 S. E. 142), the judgment of the superior court reversing that of the Department of Industrial Relations was reversed solely on the ground that there was "some evidence" authorizing the inference, as found by the hearing director, that the claimant was not injured in the course of her employment. In the Woodward case the claimant had completed her lunch on the premises where it was provided by the hotel by which she was employed, and had returned to her work. After returning to her work and finding that she still had a considerable amount of unexpired lunch hour remaining, she decided to go to the barber shop in the hotel and discuss with her son-in-law, who was employed there, a matter personal to herself. The Board of Workmen's Compensation found as a matter of fact that the employee "stepped aside from her duties for personal reasons and was injured while returning to the place where she worked." That case is therefore distinguishable from the case at bar and from General Accident Fire &c. Corp. v. Worley, supra, and like cases, in that, while a contract of employment contemplated that one would go home at night and accordingly must be on the premises a reasonable time before the commencement of work on the following morning, and also contemplated that when an employee left the employment to eat lunch such employee must of necessity be back on the premises where the work was to be done a reasonable time before the commencement thereof after the lunch hour, nevertheless, the contract did not contemplate that an employee would step aside from the usual employment to engage in some matter purely personal to himself such as going away from the place of work to talk to another person entirely disconnected from the employment, as was done in the Woodward case. Accordingly, in that case it was held that the return from this purely personal mission was a part of the mission, which was a mission not contemplated by the contract of employment. On the other hand, in this case, and in the Worley case, supra, and like cases, the stepping aside from the employment was to go home at night or to go to lunch, which is an act contemplated by the employment, and which necessitates the return to the place of employment at a reasonable time before the beginning thereof. An employee cannot possibly begin work on time unless he arrives at his place of employment long enough before the time set for the beginning thereof in order to be there at that time.
In none of those cases, nor in any other we have been able to find, has this court or the Supreme Court held as a matter of law that undisputed facts such as appear in the present case would bar a claimant from compensation. It should accordingly be concluded that where, as here, the claimant has departed from his employment to go elsewhere to eat his lunch on time given him for that purpose, but where he is returning to his employment and is injured at a place and time where it is necessary for him to be in order to get back to his work station at the time set for him to recommence his duties, the situation is exactly the same as though he were arriving in the morning preparatory to undertaking his day's duties, and the injury must, therefore, be presumed to have arisen out of and in the course of his employment.
Since the hearing director found an erroneous conclusion of law from undisputed facts, the judge of the superior court did not err in reversing the award.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Edward F. Taylor, contra.
Marshall, Greene & Neely, Burt DeRieux, for plaintiffs in error.
DECIDED DECEMBER 2, 1954 -- REHEARING DENIED DECEMBER 17, 1954.
Saturday May 23 03:52 EDT


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