Though a presumption may arise that an employee's death arose out of and in the course of his employment where such employee dies on account of injuries received in a place where he may reasonably be expected to be in the performance of his duties ( Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706 (5), 165 S.E. 850), such presumption disappears upon the introduction of evidence to the contrary. Travelers Ins. Co. v. Curry, 76 Ga. App. 312 ( 45 S.E.2d 453); Aetna Casualty c. Co. v. Fulmer, 81 Ga. App. 97, 101 ( 57 S.E.2d 865). No such presumption arises in this case, because the undisputed evidence shows that, at the time the employee met his death, he was not on the premises of his employer, nor in a place where he may reasonably have been expected to be in the performance of his duties. From the circumstantial evidence, the inference might reasonably be drawn that he was in the fruit stand solely for the purpose of drinking coffee.
See Crawford W. Long Hosp. v. Mitchell, 100 Ga. App. 276 ( 111 S.E.2d 120) (1959); Ga. Ins. Service v. Lord, 83 Ga. App. 28 ( 62 S.E.2d 402) (1950); American Mut. Liability Ins. Co. v. Brock, 35 Ga. App. 772 ( 135 S.E. 103) (1926). See also Parks v. American Fidelity c. Co., 97 Ga. App. 833 ( 104 S.E.2d 624) (1958); Employers Liability c. Corp. v. Hollifield, 93 Ga. App. 51 ( 90 S.E.2d 681) (1955); Aetna Cas. c. Co. v. Fulmer, 81 Ga. App. 97 ( 57 S.E.2d 865) (1950), and vice versa, 85 Ga. App. 102 ( 68 S.E.2d 180) (1951). Our scrutiny of the record in the instant case, however, discloses that since the March 12 "notice" to the employer was insufficient as a matter of law to put appellee on notice of the possibility of a workers' compensation claim, there was no evidence at all to support the Board's finding that attorney fees should be assessed in accordance with the provisions of OCGA § 34-9-108 (b) (Code Ann. § 114-712) regarding reasonable grounds for non-compliance. The record disclose not only that there was competent evidence of timely compliance with subsection (d) (filing of notice to controvert within 21 days of receipt of the letter from appellant's attorney) and there was no evidence at all to support a conclusion that there were no reasonable grounds for a technical violation of subsection (b), but that there was affirmative evidence of a reasonable ground for the employer to believe that no payment was due,
Evidence which merely tends to negate what is the suspected cause of an unexplained death which does not affirmatively establish an alternate noncompensable explanation for the injury does not rebut the general presumption. See Sturgis, supra. Cf. Hartford Acc. c. Co. v. Cox, 101 Ga. App. 789 ( 115 S.E.2d 452) reversing Francis v. Liberty Mut. Ins. Co., 95 Ga. App. 225 ( 97 S.E.2d 553) (a mere inference is not sufficient to overcome presumption; competent evidence must be adduced at hearing which is contrary and irreconcilable with presumption); Aetna Cas. c. Co. v. Fulmer, 81 Ga. App. 97 ( 57 S.E.2d 865) (presumption disappears upon introduction of evidence to contrary; uncontradicted evidence showed that employee died while engaged in personal activity not incidental to employment); Travelers Ins. Co. v. Curry, 76 Ga. App. 312 (2) ( 45 S.E.2d 453) (presumption overcome by evidence that employee had been drinking). Under the evidence here, the presumption was left standing.
The burden then shifted to the employer/carrier to produce evidence to rebut the presumption. Travelers Ins. Co. v. Curry, 76 Ga. App. 312 ( 45 S.E.2d 453); Aetna Cas. Surety Co. v. Fulmer, 81 Ga. App. 97 ( 57 S.E.2d 865); 11 EGL § 140. There being no such evidence, we can only conclude, as did a majority of the board, that the death arose out of employment.
The factual situation here clearly comes within the ruling in Fielder v. Davison, 139 Ga. 509 (5) ( 77 S.E. 618) that: "If while a servant is not engaged in the performance of his master's business, and during a time when he is free to engage in his own pursuits, his master lends him an automobile, and while he is using it for his own pleasure, disconnected from any business of the master, he negligently injures another by its operation, the servant will stand in the same position as would another borrower, and the master will not be liable for his acts, on the doctrine of respondeat superior." Accord: Eason v. Joy Floral Co., 34 Ga. App. 501 (1) ( 130 S.E. 352); Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 ( 185 S.E. 147); Royal Undertaking Co. v. Duffin, 57 Ga. App. 760 (1), supra; Graham v. Cleveland, 58 Ga. App. 810, 811 (1) ( 200 S.E. 184); Roper v. Amer. Mut. c. Ins. Co., 69 Ga. App. 726 ( 26 S.E.2d 488); Aetna Cas. Surety Co. v. Fulmer, 81 Ga. App. 97 ( 57 S.E.2d 865); Ruff v. Gazaway, 82 Ga. App. 151 ( 60 S.E.2d 467); Johnson v. Webb-Crawford Co., 89 Ga. App. 524 ( 80 S.E.2d 63); Johnson v. Brant, 93 Ga. App. 44 ( 90 S.E.2d 587); Fulton Bag Cotton Mills v. Eudaly, 95 Ga. App. 644 ( 98 S.E.2d 235); Sparks v. Buffalo Cab Co., 113 Ga. App. 528 ( 148 S.E.2d 919); U.S.F. G. Co. v. Skinner, 188 Ga. 823 ( 5 S.E.2d 9); Young v. Kickliter, 213 Ga. 42 ( 96 S.E.2d 605); Chattanooga Publishing Co. v. Fulton, 215 Ga. 880 ( 114 S.E.2d 138). Ownership of the vehicle alone is insufficient to establish liability on the part of the owner, and mere proof of ownership is not sufficient to establish prima facie that the car was being driven by a servant of the owner, about the owner's business and within the scope of his employment.
Harper v. National Traffic Guard Co., 73 Ga. App. 385 (2) ( 36 S.E.2d 842); Hughes v. Hartford Acc. c. Co., 76 Ga. App. 785, 789 ( 47 S.E.2d 143); Wilcox v. Shepherd Lumber Corp., 80 Ga. App. 71, 73 (1) ( 55 S.E.2d 382). In a case brought by a widow to recover compensation on account of the death of her husband, where the evidence shows that the employee died on account of injuries received by him at a place where he might reasonably have been expected to be in the performance of his duties, the claimant's case is aided by a presumption that the death arose out of and in the course of his employment, Standard Acc. Ins. Co. v. Kiker, 45 Ga. App. 706 (5) ( 165 S.E. 850), but this presumption does not benefit the claimant upon the introduction of uncontradicted evidence showing that the employee was not in such a place, Travelers Ins. Co. v. Curry, 76 Ga. App. 312 (2) ( 45 S.E.2d 453), Aetna Cas. c. Co. v. Fulmer, 81 Ga. App. 97, 101 ( 57 S.E.2d 865). Accordingly, where the undisputed evidence shows that the deceased employee, a night policeman employed for the purpose of patrolling within the city limits of the City of Pembroke in the city's police car, was given express instructions to remain within the city limits and not to chase speeders beyond the city limits; that he had no authority to drive the automobile beyond the limits of the city except to apprehend one suspected of a major crime such as murder "or something in that order", and where it appeared that the deceased met his death at a point some 19 or 20 miles outside the city limits while engaged in chasing a speeding motorist, and where there was no evidence indicating that the deceased had any reason to think, at the time he was killed, that a major offense such as murder "or something in that order" had been committed, the uncontradicted evidence demanded a finding that the deceased was beyond the scope of his employment and not at a place where he
2. It has frequently been stated that where an employee is found dead in a place where he might reasonably be expected to be in the performance of his duties, the natural presumption arises that his death arose out of and in the course of his employment. Hartford Accident c. Co. v. Cox, 101 Ga. App. 789 ( 115 S.E.2d 452); Williams v. Maryland Cas. Co., 99 Ga. App. 489 ( 109 S.E.2d 325); Fulmer v. Aetna Cas. c. Co., 85 Ga. App. 102 ( 68 S.E.2d 180); Aetna Cas. c. Co. v. Fulmer, 81 Ga. App. 97 ( 57 S.E.2d 865); Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706 ( 165 S.E. 850). In all such cases the cause of death is known and it appears that the death was accidental and not due to natural causes disassociated from the employment.
However, in the instant case the hearing director bases his findings and award upon evidence which shows that the claimant was at a place where he might reasonably have been in the performance of his duties or doing something incidental thereto at the time of the injury. Employer's Liability Assurance Corp. v. Woodward, 53 Ga. App. 778 ( 187 S.E. 142), is not authority to reverse the instant case because of different facts being involved. This is true also in the cases of Travelers Insurance Company v. Curry, 76 Ga. App. 312 ( 45 S.E.2d 453) and Aetna Casualty c. Co. v. Fulmer, 81 Ga. App. 97, 100 ( 57 S.E.2d 865). See Aetna Casualty c. Co. v. Jones, 82 Ga. App. 422 ( 61 S.E.2d 293).
The judge of the superior court is directed to remand the case to the State Board of Workmen's Compensation for further proof and consideration." Aetna Casualty Surety Co. v. Fulmer, 81 Ga. App. 97, 101 ( 57 S.E.2d 865). The evidence adduced on the second hearing of the case, upon its remand to the State Board of Workmen's Compensation by this court, sufficiently supplemented the evidence adduced on the first hearing — which has been summarized in Aetna Casualty Surety Co. v. Fulmer, supra — to authorize the board's finding that the claimant's husband met his death by an accident arising out of and in the course of his employment.
In California the right to compensation by an employee is not limited to injuries received while actually engaging in the employer's work. "The facts in Aetna Casualty Surety Co. v. Fulmer, 81 Ga. App. 97 [57 S.E.2d], cited by petitioner, are so dissimilar to those in our case as not to require comment. It, BrynwoodLand Co. v. Industrial Com., 243 Wis. 380 [ 10 N.W.2d 137], and Mishawaka Rubber Woolen Mfg. Co. v. Walker, 119 Ind. App. 309 [ 84 N.E.2d 897], applied the well known rule that an injury sustained by an employee while engaging in recreational activity for his own amusement is not compensable.