Opinion
36437.
DECIDED NOVEMBER 28, 1956.
Workmen's compensation. Before Judge Gray. Irwin Superior Court. August 25, 1956.
J. C. McDonald, McDonald McDonald, for plaintiff in error.
Murphey Rogers, Clayton Jay, Jr., Jay, Garden Jay, contra.
The trial judge did not err in affirming the award of the single director of the State Board of Workmen's Compensation.
DECIDED NOVEMBER 28, 1956.
Mrs. Sue Ross Hudson filed a workman's compensation claim, as next friend and guardian of Johnny Carroll Ross, Libby Ann Ross and Lanny Ross, minor children of Leon C. Ross, against Fitzgerald Motor Company, Inc. A single director awarded compensation. The defendant appealed to the superior court which affirmed the director's award. The defendant excepts to the superior court's judgment.
The only issue which was not stipulated by the parties was whether or not the accident and injury which resulted in the death of Leon C. Ross arose out of and in the course of his employment. The case came up for hearing before the director on April 5, 1956, at Ocilla, Georgia, when the following evidence was adduced. The following witnesses testified in substance as follows:
Mrs. Sue Ross Hudson: That Leon C. Ross was her husband and at the time of his death was employed by the Fitzgerald Motor Company, Inc., as a salesman and collector; that he did not have regular hours of employment, usually going to work about 7:30, coming home for supper, and if he had more work continuing until he was through; that he frequently worked as late as 8 or 9; that his employer furnished him an automobile for his work, a green 1951 Ford, also gas and oil; that on the evening of August 23, 1954, the deceased drove her and their children to the home of her mother in Nashville, Georgia; that on the way they went on U.S. Highway No. 129 south from Ocilla and turned right at a crossing and went to Clay Taylor's house; that Taylor was not there but the husband of the witness talked with a neighbor of Taylor's one Arthur Broome; that the deceased told Mr. Broome that Mr. Anderson, the boss of the deceased, had sent him there to collect a note on Mr. Taylor's car and he requested Mr. Broome to tell Mr. Taylor he would be back the next day between sundown and dark and to leave the car or the money; that the witness had been with her husband several times when he was working after dark and most of his work was done away from his employer's place of business and much of it in Irwin County; that the place where the accident occurred was at the crossing where they had turned the day before to go to Clay Taylor's house; that the witness had paid a funeral home bill for burial expenses of her husband in the amount of $1,153.72 and she could identify papers she took from his car after the wreck on which were marked "Local accounts receivable"; that her husband had not planned to pick her up at her mother's home on the night of August 24, 1954, which was the night of the fatal accident, and she was called there after the wreck; that she had traveled to Ocilla and Jacksonville with her husband in his work several times; and that she had not expected her husband to call for her at Nashville, her mother's home, until August 25.
Arthur Fletcher: That he was a salesman with Fitzgerald Motor Company in August, 1954; that the salesmen of the company did not usually make collections unless they happened to go by the house; that one Mr. Foster did most of the collecting but the witness had done some and had worked at night; and that the salesmen did not have regular working hours, but if some special collection was to be made Mr. Anderson would give the salesman instructions.
Arthur Broome: That he lived on the Mercer Rogers place about seven miles from Ocilla, down Highway 129, turning right at the log store; that Clay Taylor also lived on the Rogers place on August 24, 1954; that on August 23 Leon Ross and his wife came by asking about Clay Taylor, something about a payment on Clay's car and that Ross must have the payment or the car; that Ross asked when he could catch Taylor at home and the witness said early in the morning or late at night; that he saw Ross the next morning about 8 o'clock when he asked for Clay Taylor and the witness told him that Taylor would leave early and come in late, upon which Ross stated "I will be back tonight" and departed; that Ross stated he was trying to collect the payment on the car and was in the same green Ford he had driven the evening before; that a man was with Ross the last morning but he did not know him; and that when Ross came by the morning of the 24th, Junior Broome, his brother, and another boy were with him.
Mrs. Arthur Broome: That witness recalled when Leon Ross was killed; that the night before Ross had driven to her house looking for Clay Taylor to collect for an automobile, saying he had to have a payment or must take the car back; and that Taylor was not there that night and Ross stated he would return to see him.
Mrs. C. Jourdan: That on the date Leon Ross was killed the witness lived across the street from him and on said date, August 24, 1954, Ross came over to her house about 6:15 in the evening; that she had fixed supper for him as his wife was away, but Ross told her he did not have time, that he had to go down below Ocilla to see a man about collecting for a car; that Ross left his house about 6:30 driving a green Ford; that her husband was with her when she talked with Ross just before he departed; that Ross told her he was going down to Nashville to see his wife and children after he had seen the man but did not say anything about bringing them home; and that she talked about her conversation with Ross with a Mrs. Broadhurst after the wreck that night.
Carlton Jourdan corroborated the testimony of Mrs. Jourdan, and testified specifically that Ross said he could not eat supper because he "had some work to do down below Ocilla to see a man about a car . . . that after he saw this man he would probably go by and see his wife."
W. H. Whitley testified he was employed by Fitzgerald Motor Company and talked with Ross the afternoon in question, and Ross told him he was going to Nashville to get his wife and kids, and witness did not recall anything said about collecting for any car.
Benjamin A. Cook: That he worked for Amoco Station, Ocilla, in August, 1954, and that Ross stopped at said station about thirty minutes before the wreck the night he was killed and asked him to ride to Nashville with him but he did not, and that Ross said nothing about collecting on or picking up a car.
Herbert W. Clark: That he worked for Colony Oil Company and was employed by B. I. Anderson, president of Fitzgerald Motor Company; that on the night Ross was killed Ross drove him home when they got off from work and told him he was going to Nashville on finishing work and Ross went back to the motor company after leaving him at home.
Chester E. Foster: That he was employed by the Fitzgerald Motor Company mostly as a collector and saw Ross on the afternoon of August 24 after he had driven Clark home, and Ross told him he had to go to Nashville for his family; and that he did not know why Ross had a collection sheet as they were given out on the first of the month to the witness, Mr. Bowman and Mr. Anderson.
Mr. Bowman: That he was office manager and assistant sales manager of Fitzgerald Motor Company and that salesmen took orders from him and Anderson; that he rode out with Leon Ross on sales promotion in August of 1954 and to see Clay Taylor about payment on a car; that he did not hear the conversation between Ross and two men there; that he did not instruct Ross to go back to see Taylor and did not know why he was going in that direction when he had the wreck; that the company did instruct salesmen to collect past due payments if they were to be in sections where buyers lived, but Mr. Foster was primary collector; and that Taylor had never made a payment on the car nor had the company ever found said car.
B. I. Anderson: That he was president of Fitzgerald Motor Company and saw Leon Ross shortly before he got off from work on August 24, 1954; that Ross asked to get off early to have supper with his mother in Ocilla before going to Nashville to get his children; that he did not authorize Ross to go see Taylor and did not know he was going; that salesmen were not authorized to collect except under specific instructions; and that the accident occurred 7 or 8 miles from Ocilla at a crossroad where a log cabin stood on the left, 17 miles from Fitzgerald.
R. L. Broome, Jr., testified in general corroboration of the testimony of Arthur Broome.
The defendant employer insists that the facts found by the director and the final award do not support the award in the case and the findings therein for the reason that there was no evidence that the deceased met with any accident or injury which arose out of and in the course of his employment. Mr. Bowman, office and assistant sales manager for Fitzgerald Motor Company testified that the company instructed the salesmen to collect past due accounts if they were going to be in the section where the buyer lived. This was some evidence that the deceased was authorized to make collections for his employer and was thus within the scope of his employment. Mrs. Jourdan, corroborated by her husband, testified that on the day of the collision the deceased stated that he could not have supper with them because he must go to a locality below Ocilla to collect for an automobile; and Mr. Jourdan testified that the deceased stated this was in connection with his "work" — that the deceased said he "had some work to do down below Ocilla to see a man about a car."
The defendant insists this testimony would be no evidence of the purpose of the deceased's trip because it was hearsay and could only prove that the statement was made by the deceased. With this contention we cannot agree. Under the holdings of Shirley v. State, 168 Ga. 344 ( 148 S.E. 91); Southern Ry. Co. v. Tudor, 46 Ga. App. 563, 574 (5) ( 168 S.E. 98); and Allstate Ins. Co. v. Phoenix, 90 Ga. App. 619 (2) ( 83 S.E.2d 335), as well as under Code § 38-302, the testimony was admissible to explain the conduct of the deceased in going in the direction of Ocilla, his presence at the place where the accident occurred, and his purpose in being there. The accident occurred on the route which the deceased would take in going to Mr. Taylor's home. Considering all the evidence adduced upon the trial, there was sufficient evidence to authorize the director's finding that the deceased's accident and injury arose out of and in the course of his employment. The trial judge did not err in affirming the award of the single director.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.