Summary
In Travelers Ins. Co. v. Ross, 110 Ga. App. 312 (138 S.E.2d 474) and Roper v. American Mut. Ins. Companies, 69 Ga. App. 726 (26 S.E.2d 488) the Court of Appeals held that accidents involving employees in vehicles furnished to the employees (and not paid for by the employees for personal use) en route home were not compensable. American Hardware Mut. Ins. Co. v. Burt, 103 Ga. App. 811, 815 (120 S.E.2d 797) involved a situation where the employee was under orders and control of the employer while en route home on the employer's motorcycle.
Summary of this case from Electric Mutual c. Ins. Co. v. GrynkewichOpinion
40821.
DECIDED SEPTEMBER 8, 1964. REHEARING DENIED SEPTEMBER 23, 1964.
Workmen's compensation. Fulton Superior Court. Before Judge Shaw.
Greene, Neely, Buckley DeRieux, Edgar A. Neely, Jr., J. Douglas Stewart, for plaintiffs in error.
Fine Rolader, Joseph J. Fine, D. W. Rolader, contra.
Where the evidence shows that an employee, previously on emergency twenty-four hour duty, had been released to his normal duties, his demise while driving home at the end of normal working hours did not arise out of and in the course of his employment.
DECIDED SEPTEMBER 8, 1964 — REHEARING DENIED SEPTEMBER 23, 1964.
Ross, the decedent, a field worker for the American Red Cross was on assignment with the Office of Civil Defense in Thomasville, Georgia. While Ross was attending a meeting in Orlando, Florida, during September, 1960, Hurricane Donna struck. He was then assigned to disaster support in the Fort Myers, Florida, area on a twenty-four hour alert basis usual for field workers in disaster situations. On Friday, September 15, the disaster support office for the Fort Myers area was deactivated and decedent's supervisor suggested that he return to Thomasville, a distance of 400 miles. This he did by his own car, the use of which was normal in his employment. He arrived in Thomasville around 3 p. m. and reported to the supervisor. Great stress in these activities is laid on reports and, while the supervisor would have liked Ross' report then, Ross looked extremely tired and the supervisor suggested that he "knock off," go home to Tallahassee and get some sleep, and they would take up his report on the next working day. No request was made that Ross have his report ready then, although many of the field workers did complete their reports at home. Decedent worked in the office preparing his report until the normal closing hour of 5 p. m., then left for his home in Tallahassee. Ross had an accident just outside of Thomasville and was killed.
We do not consider here, because of the disposition of the case, the employer's contention that Ross was an employee loaned to the Office of Civil Defense, thereby relieving the Red Cross of Workmen's Compensation responsibility.
Decedent's divorced wife filed this claim on behalf of his two minor children. The single director found for the employer, but that award was vacated by the full board and an award was made for claimants. The superior court affirmed the award on behalf of claimants and exception is taken to that order.
As is usual in compensation cases, the question facing this court is whether there was any evidence to support the award of the board. One of the findings of the full board was that "The employee at the time of his death was still on call and still under emergency status and was killed in an accident at a place and time where he might reasonably have been expected to be in the course of his employment. The presumption therefore arises that the claimant was within the scope of his employment and that his death resulted from an accident which arose out of his employment." The difficulty with this finding is that, even assuming the position that the presumption mentioned would apply in this case, the evidence shows that the decedent had been relieved of any further responsibility toward his job until the next working day. The disaster support office to which he had been assigned and where he was on twenty-four hour duty, was deactivated earlier on the day of his death and he was completing what can be fairly characterized as a routine office matter when the closing hour came. He had been released from disaster support duty back to his normal employment, and he left at the usual closing hour for the office.
"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.'" American Mut. Liability Ins. Co. v. Curry, 187 Ga. 342, 353 ( 200 S.E. 150), quoting with approval, Venho v. Ostrander R. c. Co., 185 Wn. 138 ( 52 P.2d 1267). This rule is not altered by the fact that the employee may have been subject to call if the disaster support office had been reactivated, or if another disaster had occurred. Welsh v. Aetna Cas. c. Co., 61 Ga. App. 635 ( 7 S.E.2d 85); Ralph v. Great American Indem. Co., 70 Ga. App. 115 ( 27 S.E.2d 756). See Hamner v. White, 80 Ga. App. 648 ( 56 S.E.2d 653); Fidelity Cas. Co. v. Roberts, 86 Ga. App. 472 ( 71 S.E.2d 718) and American Mut. Liability Ins. Co. v. Casey, 91 Ga. App. 694, 695 (2) ( 86 S.E.2d 697) where awards for claimants were affirmed in stronger factual situations. Nor can it make any difference that the employee had not completed his report concerning work in the disaster area when he "knocked off" at the end of the business hours to go home and carried his uncompleted report along in a brief case. He was neither requested nor required to do any further work on the report until the next working day. Rarely does an employee complete his work at the end of a day; rather he returns on the next working day to take up where he left off the day before. Nor is there anything in the evidence to indicate that Ross was in "travel status" after reporting in at the office. His immediate supervisor testified that when Ross reported back to the Thomasville office "he had completed his assigned responsibilities" in the disaster area. He was back at his normal place of employment and duty where his regular working hours for the day ended at 5 p. m. when he "knocked off" to go home. The whole import of it is that he was simply going from his place of work to his home when the accident occurred.
The evidence did not support the finding that decedent "was still on call and still under emergency status," but demanded a finding to the contrary. Thus, resort cannot be had to traveling salesman cases such as Thornton v. Hartford Acc. c. Ins. Co., 198 Ga. 786 ( 32 S.E.2d 816), where claimant was injured while returning to his hotel after partaking of his evening meal at the nearby D. Jones Cafe. See also New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 ( 118 S.E. 786); Zurich Ins. Co. v. Zerfass, 106 Ga. App. 714 (1) ( 128 S.E.2d 75); Pike v. Maryland Cas. Co., 107 Ga. App. 49, 52 ( 129 S.E.2d 78) and citations.
The basic requirement of the Workmen's Compensation Act is that the injury arise out of and occur in the course of the employment. Code Ann. § 114-102. Neither of these requisites is present here and the award of the board must be reversed.
Judgment reversed. Bell, P. J., and Jordan, J., concur.