Opinion
31941.
DECIDED MARCH 18, 1948. REHEARING DENIED MARCH 31, 1948.
Appeal; from Colquitt Superior Court — Judge Lilly. December 15, 1947.
Hoyt H. Whelchel, for plaintiff.
Neely, Marshall Greene, for defendants.
1. For an injury to be compensable under the Workmen's Compensation Law it must be occasioned "by accident arising out of and in the course of the employment." Code, § 114-102. An accident arises in the course of the employment, within the meaning of the act, when it occurs within the period of the employment, at a place where the employee reasonably may be in performance of his duties, and while he is fulfilling these duties or engaged in doing business incidental thereto. An accident arises out of the employment, when it arises because of it, as when the employment is a contributing proximate cause.
( a) The burden is on the claimant to prove that the injuries for which compensation is sought arose out of and in the course of the employment, before compensation can be legally awarded to the claimant.
2. An injury "caused by the wilful act of a third person directed against an employee for reasons personal to such employee" is not compensable under the Workmen's Compensation Act.
3. Findings of fact made by the board within its power are, in the absence of fraud, conclusive, if supported by any competent evidence, and are binding on the courts.
( a) In such a case, not only may an issue of fact arise from contradictory evidence, but contrary implications consistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain an issue of fact despite uncontradicted evidence thereto.
4. This court, in reviewing an award made by the full board denying compensation to the claimant, must accept that evidence most favorable to the employer, and, if there is any competent evidence to authorize the award, it must be affirmed.
5. The judge of the superior court did not err in affirming the award of the State Board of Workmen's Compensation denying compensation in this case.
DECIDED MARCH 18, 1948. REHEARING DENIED MARCH 31, 1948.
Will Hughes filed with the State Board of Workmen's Compensation a claim for compensation for injuries sustained while he was an employee of Georgia Peanut Company. Hartford Accident Indemnity Company was the insurance carrier of his employer. At a hearing before a single director compensation was denied; and on appeal this award was approved by the full board. The Judge of the Superior Court of Colquitt County affirmed the award, and the claimant excepted.
It appears from the record that on Monday morning, August 26, 1946, Will Hughes, the claimant, was engaged in firing a boiler for Georgia Peanut Company, and, while in the act of opening the boiler door to put in wood, he heard a noise and turning around was faced by Norman Wright, who had a pistol drawn on the claimant, and the claimant said "You are fixing to shoot the wrong man — I never done nothing to you or your family." Norman Wright did not reply, but commenced shooting the claimant, who received injuries in the head, chest, shoulder, and left arm from the pistol shots, and thereby suffered a total disability for 20 weeks, and thereafter a 90 percent disability in his left arm. It further appears from the summary of evidence by the director that the claimant testified that he and Norman Wright both worked for the same company, and that some time prior to the shooting, when his foreman had told him to do some of the night-watching work and he had been instructed to go around with the watchman in order to learn exactly which keys to use, he met Norman Wright, whereupon he had remarked "`They tell me you are trying to beat me out of my job", whereupon the claimant had asked him where he had obtained that information, and Norman said that all of the employees told him that. The claimant then told him that the claimant did not want his job and did not even want the firing job, but that he had agreed to do this work until his boss could get someone else, and that, if he was referring to the watching job, the claimant offered to let him have that work right then, because, as the claimant stated, he had told Norman he wanted to go to church anyway. The claimant stated that this was the only time he had ever had trouble with this employee. The claimant was not certain as to when this conversation took place, but he thought that it was sometime in July while the regular watchman was off sick. He stated that, on the morning he was notified to fire the boiler, he had been told by a Mr. Giles who had come over and waked him, and that the first time he had dozed off to sleep again and was awakened the second time, when he got up and went down to the boiler room.
J. F. Jarrell testified that he was superintendent of Georgia Peanut Company, and that he had been so employed in August of last year, and knew that the claimant was working for his company at that time. He stated that the claimant had been employed in the capacity of fireman and so had Norman Wright. He stated that, over the week-end when the plant was shut down, it was required that somebody come in and fire up the boiler to give steam for operation on Monday morning, and that, since they only worked 40 hours a week and paid time and half time for overtime, the claimant had come to him one day and told him he felt like he should have part of that overtime of firing up, and that Norman Wright had been firing up every Monday morning, and that he then felt that the claimant had some justification in his request, and stated that hereafter one would fire one Monday morning and on the next Monday the other in other that they might equalize the amount of hours; stating that had taken place some three or four weeks before the shooting, and that he had told the claimant to fire up on the Monday morning when he was shot.
J. H. Cason testified that he was employed by Georgia Peanut Company as a night watchman, and that on one Sunday morning Mr. Jarrell had instructed him to give the claimant the watchman's clock, and that, as he was handing the clock to the claimant, about that time Norman Wright walked in and stated, "Well, Will, you tried to beat me out of the firing job, now you're trying to beat me out of the watchman's job." Thereupon the claimant stated that he was not trying to beat him out of anything and that he was only doing what he had been instructed to do. He stated that Norman had also done some watching when the regular man was off.
W. W. Giles testified that he was also a night watchman, and that he was on duty watching the night that the claimant was shot, but that he had called the claimant that morning to come down and fire the boiler, which was around 3 o'clock; and that, since he did not get up the first time, he went back and called him at 4 o'clock, and the next time he saw him was after he had been shot; that he heard the shots and immediately went to the boiler room where he found the claimant lying on the floor, and the claimant made the statement to him that Norman Wright had shot him.
Norman Wright was present at this hearing and asked permission to testify. The director gave him that right and qualified him. He testified that he had not shot Will Hughes, that he had been tried and had been acquitted of the charge. He denied that he had ever threatened the claimant in this case and, after this statement, he was turned over to the attorney for the claimant for cross examination and proved to be a very hostile witness, without giving any intelligent or satisfactory answers to the questions propounded to him.
In order for an injury to be compensable under the provisions of the Workmen's Compensation Law, it must have been occasioned "by accident arising out of and in the course of the employment." Code, § 114-102. An accident arises in the course of the employment, within the meaning of the act, "when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. . . An accident arises `out of' the employment when it arises because of it, as when the employment is a contributing, proximate cause. This and the conditions stated above must concur before the act can apply." New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (2a) ( 118 S.E. 786); AEtna Casualty Surety Co. v. Honea, 71 Ga. App. 569, 571 ( 31 S.E.2d 421), and citations. And the burden is on the claimant to prove that the injury for which compensation is sought arose out of and in the course of the employment, before compensation can be legally awarded to the claimant.
The question presented for decision in this case is whether or not the injuries sustained by the claimant arose out of his employment, it being conceded by all parties concerned that said injuries arose in the course of his employment. Under the Workmen's Compensation Act an injury "`arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises `out of' the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. . . It must be incidental to the character of the business, and not independent of the relation of master and servant." Hartford Accident Indemnity Co. v. Zachery, 69 Ga. App. 250 (1) ( 25 S.E.2d 135); New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 688 ( 118 S.E. 786); Liberty Mutual Ins. Co. v. Neal, 55 Ga. App. 790, 800 ( 191 S.E. 393).
The Director of the Board of Workmen's Compensation found from the evidence that the claimant's injuries did not result from an accident arising out of his employment, for the reason that the employment was not a contributing proximate cause of the shooting that caused such injuries. It is not clear from the record just what the claimant meant by the exclamation, "You are about to shoot the wrong man — I never done nothing to you or your family," which was uttered by the claimant to Norman Wright immediately before Wright shot him. According to the evidence, nothing else was said by either of them at that time. They were employed by Georgia Peanut Company, and both of them had been firing the boiler at the company's plant at different times, and both had been acting as watchman part of the time. It appears that, some two or three weeks before the shooting, Norman Wright had accused Will Hughes of trying to take or beat him out of his job, which was denied by Hughes. The director stated in his findings of fact that the evidence does not disclose why Norman Wright shot Will Hughes, but from the evidence adduced, it is more reasonable to assume that the assault was committed on Hughes for personal reasons, rather than that the claimant's employment was a contributing proximate cause of such assault. An injury "caused by the wilful act of a third person directed against an employee for reasons personal to such employee" is not compensable under the Workmen's Compensation Act. Code § 114-102; Lanier v. Brown Bros., 44 Ga. App. 831 ( 163 S.E. 263); United States Fidelity Guaranty Co. v. Fried, 64 Ga. App. 186 ( 12 S.E.2d 406); Hartford Accident Indemnity Co. v. Zachery, 69 Ga. App. 250, 251 ( 25 S.E.2d 135).
In Hightower v. United States Casualty Co., 30 Ga. App. 123 ( 117 S.E. 98), a negro automobile driver in the employ of one of the customers of Holley Wagon Works was at the place of business of the wagon works to receive an automobile wheel which had been left there for repairs, and a dispute arose between B. T. Hightower, superintendent of the Wagon Works, and the negro over the delivery of part of the wheel. The two men quarreled and had some difficulty, and the negro left and returned several hours later, and, without saying anything, shot Mr. Hightower to death. Compensation was denied to the widow of the deceased by the board, and the award was affirmed by this court, which held that Hightower met his death, not because of his employment but as the result of the wilful act of a third person, directed against him for reasons personal to the employee, and that the same fell squarely within the exception in the act now contained in Code § 114-102. We think that this principle is applicable under the facts of the present case. Also, see Kimbro v. Black White Cab Co., 50 Ga. App. 143 ( 177 S.E. 274); Hartford Accident Indemnity Co. v. Zachery, 69 Ga. App. 250 ( 25 S.E.2d 135), supra.
The present case is different on its facts from Pinkerton National Detective Agency v. Walker, 30 Ga. App. 91 ( 117 S.E. 281), same case 157 Ga. 548 ( 122 S.E. 202, 35 A.L.R. 557), cited and relied on by the plaintiff in error. The death of Walker in that case clearly arose out of and in the course of his employment, as will appear from an examination of the decisions of this court and the Supreme Court in that case.
After considering all the facts and circumstances of this case, the director found that the claimant had failed to carry the burden of proof of showing that his injuries arose out of his employment. Findings of fact made by the board within its power are, in the absence of fraud, conclusive, if supported by any competent evidence (Code § 114-710), and are binding on the courts. "In such a case, not only may an issue of fact arise from contradictory evidence, but contrary implications consistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain an issue of fact despite uncontradicted evidence in regard thereto." Liberty Mutual Ins. Co. v. Blackshear, 197 Ga. 334, 336 ( 28 S.E.2d, 860); Cooper v. Lumbermen's Mutual Casualty Co., 179 Ga. 256, 261 ( 175 S.E. 577); Employers Liability Assurance Corp. v. Woodward, 53 Ga. App. 778 (3) ( 187 S.E. 142); Merry Brothers Brick Tile Co. v. Holmes, 57 Ga. App. 281, 284 ( 195 S.E. 223).
This court, in reviewing an award made by the full board denying compensation to the claimant, must accept that evidence most favorable to the employer, and, if there is any competent evidence to authorize the award, it must be affirmed. Merry Brothers Brick Tile Co. v. Holmes, supra; Glens Falls Indemnity Co. v. Sockwell, 58 Ga. App. 111 ( 197 S.E. 647).
We are of the opinion and so hold that the judge of the superior court did not err in affirming the award of the Board of Workmen's Compensation denying compensation in this case.
We have carefully considered the authorities cited by counsel for the plaintiff in error, and do not think that they authorize or require a different ruling from the one herein made.
Judgment affirmed. Felton and Parker, JJ., concur.