Opinion
32743.
DECIDED DECEMBER 5, 1949. REHEARING DENIED DECEMBER 17, 1949.
Appeal; from Forsyth Superior Court — Judge Brooke. August 5, 1949. (Application to Supreme Court for certiorari.)
W. L. Nix, A. G. Liles, for plaintiffs in error.
Wheeler, Robinson Thurmond, contra.
There being evidence to authorize the finding of the single Director of the State Board of Workmen's Compensation, that the claimant's husband was killed while in the employ of the defendants, and that his death arose out of and in the course of such employment, the superior court properly affirmed the award, no error of law appearing.
DECIDED DECEMBER 5, 1949. REHEARING DENIED DECEMBER 17, 1949.
Mrs. Tommie Ann White filed her claim with the State Board of Workmen's Compensation against W. B. Hamner and Hamner Lumber Company to recover compensation for the death of her husband, Jewell J. White, which she contended arose out of and during the course of his employment with the defendants. A hearing was had at Buford before a single director, and both sides introduced evidence. This testimony produced facts which authorized the single director to find as follows: W. B. Hamner was in the sawmill and lumber business and operated a sawmill around sixteen miles from Buford and some two or three miles from Cumming, in Forsyth County. The claimant and her husband lived in Buford. Jewell White worked for the defendant, W. B. Hamner, at this sawmill, and he rode to his work at the mill in a truck owned by the defendants and driven by their foreman to haul supplies to the mill and to take to and from work any hands that desired to ride. Each working day, this truck would be at a certain place in Buford, referred to as the defendants' station, and there usually were some twelve to fourteen mill hands, who lived in that locality, and who would gather there and ride in this truck to the mill and to work, and in the evening this truck would bring them back to this place in Buford. Jewell White drove his own car to this place and then rode in the truck to the mill. He worked with the defendants by the hour, eight hours a day, five days a week. He drove to the mill in his own car on two occasions. One time was when he did not come to work until noon, and the other was when he left work before completing a day. Jewell White's time did not begin until he reached the mill. The transporting by the foreman of the mill was known to the defendant, Hamner, who was present most of the time when the hands boarded the truck, and he made no objection to the same. No difference in the pay received by the mill hands resulted from their riding to and from their work. On the occasion in question, there were fourteen hands in the truck, including White. There were built-in in benches in this truck, an old Army ambulance, and boards were placed therein for the hands to sit upon. On the occasion in question there were five gallon cans of gasoline in the truck to be taken to the mill. As the truck proceeded to the mill, someone threw a lighted match against a can of gasoline and the can blazed up. There was a stampede to get out of the truck, which was a closed ambulance truck, and had a rear door and a small one by the driver in front. Jewell White was seated near the front and got out of this truck, and had a rear door and a small one by the driver in front. Jewell White was seated near the front and got out of this truck, and somehow fell to the road and the truck rolled upon him and a wheel came to stop on his head, producing death.
The single director found that the death of the claimant's husband arose out of and in the course of his employment with the defendants, and rendered an award in favor of the claimant. The defendants appealed to the full board, which affirmed the award of the single director. Thereupon the defendants appealed to the Superior Court of Forsyth County, and that court affirmed the judgment of the full board. To this judgment the defendants except.
The defendants claim that the award of the board is contrary to law, in that the evidence demanded a finding that the death of the claimant's husband did not arise out of and during the course of his employment.
Findings of fact of the Workmen's Compensation Board are conclusive on the courts where there is any evidence to support them. Butler v. Mitchell, 49 Ga. App. 315 ( 175 S.E. 271), and citations. The evidence before the single director here authorized the finding of fact and the conclusion of law reached by him, namely, that the deceased was in the employ of the defendants at the time of his death, and that his death arose out of and in the course of such employment. The director planted his award upon the case of Cooper v. Lumbermen's Mutual Casualty Co., 179 Ga. 256, 260 ( 175 S.E. 577), wherein it is held: "Where in the trial of a case before the Department of Industrial Relations it appeared from the evidence that the place of actual work of the employee, who was paid by the day, was in the woods twenty miles from his residence, which was near the mill of his employer, and that he came to the mill each morning to catch a truck of a third person in order to obtain a free ride to his place of work, doing this with the full knowledge, consent, and expectation of his employer, but without any express agreement between him and his employer or between the employer and the owner of the truck as to such transportation, and the employee was thrown from the truck and killed when one of the wheels jarred from running over some object which fell off the truck into the highway, the department was authorized to find that the injury and death of such employee arose out of and in the course of his employment. This is true notwithstanding the testimony of the manager of the employer company that the pay of the employee began 'when he got to the woods,' and that if he had not reached the woods until noon he would have been paid for a half day only, the witness further testifying that he did not know `when his time was figured from.' The testimony of a witness is to be considered as a whole, and not in disjointed parts. Nor is the Department of Industrial Relations bound in every case to accept the literal statements of a witness before it merely because such statements are not contradicted by direct evidence."
While the evidence shows that the deceased was paid from the time he started work at the mill, and that the time he was riding on the truck going to and from his work was not counted, the director was authorized to find that he was actually in the service of the defendants while he was riding to and from his work on this company truck, and that the real beginning of his work was when he boarded the truck to go the mill. In Cooper v. Lumbermen's Mutual Casualty Co., supra (p. 261), it is held: "Implications inconsistent with the testimony may arise from proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto."
This case is like that of Liberty Mutual Insurance Co. v. Mangham, 56 Ga. App. 498 ( 193 S.E. 87), and similar cases, and is almost on all-fours with the Cooper case, supra. We find nothing in American Mutual Liability Insurance Co. v. Curry, 187 Ga. 342 ( 200 S.E. 150), and Georgia Ry c. Co. v. Clore, 34 Ga. App. 409 ( 129 S.E. 799), to the contrary. The facts in the Georgia Railway Co. case, supra, clearly, differentiate it from the instant case. Regarding American Mutual Liability Insurance Co. v. Curry, the Supreme Court distinguished Cooper v. Lumbermen's Mutual Casualty Co. from that case, hence there is no need for our endeavoring to distinguish it here. The Supreme Court in American Mutual Liability Insurance Co. v. Curry, supra, dealt at considerable length to distinguish it from the Cooper case, and we are bound by the distinction. Moreover, the Cooper case was by a full bench, and the American Mutual Liability Insurance Co. case was not by a full bench. The principles in the Cooper case, and not those in the American Mutual Liability Insurance Co. case, apply here if there should be any conflict between the two cases. It is our opinion that there is no conflict.
It follows that the judge of the superior court did not err in affirming the award of the full board, which affirmed the award of the single director.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.