Summary
In Indemnity Ins. Co. of North America v. Bolen, 106 Ga. App. 684 (1) (127 S.E.2d 832), the workman was injured during transportation to and from his home, which transportation was furnished to him by his employer (he was injured immediately after getting out of the automobile in the middle of a busy thoroughfare) and the award of compensation was upheld.
Summary of this case from Continental Casualty Company v. ThompsonOpinion
39692.
DECIDED OCTOBER 2, 1962.
Workmen's compensation. DeKalb Superior Court. Before Judge Guess.
Smith, Field, Ringel, Martin Carr, Charles L. Drew, for plaintiff in error.
Tom C. Penland, contra.
1. While generally a workman is not in the course of his employment in going to or from his work, the contrary is true where he is injured during transportation in a vehicle furnished by the employer as an incident of the employment. Whether the transportation is so furnished at least partially for the benefit of the employer and under such circumstances as to become either expressly or impliedly incident to the contract of employment rather than merely for the accommodation of the employee is a question of fact, and may be established by either direct or circumstantial evidence. The evidence here was sufficient to support the award finding it was furnished incident to the contract of employment.
2. (a) An accident arises out of the employment if, after the event, it is apparent to the rational mind that there is a causal connection between the employment and the resulting injury. It arises in the course of the employment when it proximately results from a risk encountered at a time and place where the employee reasonably may be in the performance of the duties of his employment or something incidental thereto.
(b) Where the employer furnishes transportation by truck from the work site to a place where the employee may procure public transportation to his home at the end of the day, it is the employer's duty to discharge the occupant from the truck in a reasonably safe place. The claimant's accident, which resulted from the driver's negligence in discharging him from the truck in the middle of a crowded highway, as a result of which he was injured by another automobile before he was able to reach the curb, is not under the facts of this case so unconnected with the employment as to bar him from compensation.
DECIDED OCTOBER 2, 1962.
In this workmen's compensation case the employee Bolen was injured in an accident which occurred when, after being discharged from his supervisor's automobile in the middle of a busy thoroughfare during rush-hour traffic, he attempted to cross to the curb and was hit by an approaching automobile. The claimant testified that he was paid by the hour; that he furnished his own transportation either to the home of his supervisor, Mitchell, or to the company office or warehouse, and from there transportation was furnished him to various job sites; that his employer, Cartledge, had called him the night before and instructed him to report to work at Mitchell's house the next morning and ride with him; that they left the house about 8 a. m. and went directly to the job site, and that afternoon, in accordance with their usual custom, Mitchell drove a direct route back from the job site to Mitchell's house, putting the claimant out at the most convenient intersection on the way where he could board a bus to take him home; that Mitchell was in the left or middle traffic lane on Clairmont Road approaching Scott Boulevard in DeKalb County, there was a large truck immediately ahead, and claimant got out, went between Mitchell's automobile and the truck into the opposing traffic lane where he was struck by the automobile; that this was about 4:55 in the afternoon and he was paid on that day for nine hours of work. He was furnished transportation either from the office or warehouse or from other starting points to which he was directed, and also return transportation either to the same place, if he had left his automobile there, or to a place where he could find public transportation. When he rode with Mr. Cartledge, Cartledge would provide a company truck to return him to the bus line. Sometimes, also, he rode with Cartledge's brother. The supervisor Mitchell testified that he also was paid by the hour but that his wages included a built in factor covering the use of his truck; that he drove his truck from his house and to and from various job sites during the day and returned at night; that Cartledge would call him in the evening to tell him where to go the next morning and frequently instructed workmen to meet at his house and he knew he was to take Bolen that day. While he contended there was no company authorization to charge the time consumed in transportation as time worked, he did so "whenever they knew that I was doing it yet I was not suppose to," and he made up Bolen's time sheet the same way as his own to include the time involved in transportation.
The Judge of the Superior Court of DeKalb County affirmed the award granting compensation, and this judgment is assigned as error.
1. The well recognized law, as quoted in American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 353 ( 200 S.E. 150), is as follows: "It is the general rule (to which this court adheres) that a workman injured going to or from the place of work is not `in the course of his employment'. There is an exception, however, as well established as the rule itself. The exception, which is supported by overwhelming authority, is this: When a workman is so injured while being transported in a vehicle furnished by his employer as an incident of the employment, he is within `the course of his employment' as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation." It was held in the Curry case that the employee's gratuitous and permissive riding in going back and forth between his home and place of work was a mere favor not in furtherance of the company's business, and as such was not incident to the employment. Contrary results were reached in Thompson-Starrett Co. v. Johnson, 174 Ga. 656 ( 163 S.E. 745) where a truck was provided along a fixed route for the convenience of employees, in Cooper v. Lumbermen's Mut. Cas. Co., 179 Ga. 256 ( 175 S.E. 577), where the actual employment was held to begin at the mill of the employer although the employee rode from there with a third person to the work site about 20 miles away, and in Huey v. Nix, 94 Ga. App. 498 ( 95 S.E.2d 339) where it was necessary to provide special transportation, although the claimant elected to ride with a fellow employee rather than in the employer's automobile.
It appears from the evidence here that the employer, an electrical contractor, worked at a variety of different job sites to and from which it might be necessary to transport employees; that the problem was handled in a practical manner but the employer made sure that such transportation was in fact provided, and that the exact transportation depended upon the location of the work. If the job site was nearer the employee's home than was the office, warehouse, or home of the foreman, and if the employee had transportation available, he might go there direct; if not, Cartledge would instruct him what transportation was provided. Bolen was in fact paid for the time so consumed. Under these facts there is no doubt that such transportation as was furnished was incident to the employment and was beneficial to the employer as well as to the employee. If the employees reported to the office or warehouse, transportation to the places where contracts were in progress ensued as a matter of course, and the alternate method of driving direct from the supervisor's house to the location was done on specific instructions from the defendant, and the claimant was actually paid for time in transit. The director hearing the case correctly held that the transportation was an incident to the employment.
2. It is further contended that, if such were the case, the transportation and consequently the employment had nevertheless ended when the claimant was run over, he being in the process of walking from the automobile to the curb at the time. As to this the director observed, "It was the duty of the supervisor to discharge the claimant in a safe place. . . I do not venture to say at what precise moment the claimant would have left the course of his employment but I do say he was in the course of his employment at least until he reached the safety of the sidewalk." There is a duty on an employer to furnish the employee a safe place to work, a failure to perform which is compensable under the compensation act. Southern Wire c. Inc. v. Fowler, 217 Ga. 727 ( 124 S.E.2d 738). Since the transportation from the work site to the point on Mitchell's route home where the claimant could make connections with a bus was an incident of his employment, it follows that whether or not the accident arose out of the employment depends upon "whether the circumstances of the employment require the employee to incur some special risk in using the street in the way he did." 99 CJS 874, Workmen's Compensation, § 248. The employee, being discharged from the automobile at a time and place where special risks were involved, incurred those risks from a situation arising out of and in the course of his employment. In Fidelity c. Co. of N. Y. v. Barden, 79 Ga. App. 260, 262 ( 54 S.E.2d 443) it was stated: "Some courts have gone so far as to hold that the fact that the employee is stationed at a particular place at the time of subjection to danger makes the injury sustained there compensable, and that is the principle in the case of Thornton v. Hartford Acc. c. Co., 198 Ga. 786 ( 32 S.E.2d 816). Cases involving street dangers are based on the same principles. To be compensable, injuries do not have to arise from something peculiar to the employment. Otherwise hardly any injury due to the negligence of an employee or fellow employee or employer would be compensable. After the event, it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury."
The discharge of this employee from an automobile in the center of a highway crowded with rush-hour traffic, not at an intersection, was the negligent act of a fellow servant performed as a part of the employment, and this act could have, and the director properly found that it did, proximately contribute to the claimant's injury. "The word `accident' as used in the workmen's compensation act includes negligence." Bartram v. City of Atlanta, 71 Ga. App. 313 (2) ( 30 S.E.2d 780).
It follows that the judge of the superior court did not err in affirming the award in favor of the claimant.
Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur.