Opinion
35758.
DECIDED OCTOBER 18, 1955. REHEARING DENIED NOVEMBER 22, 1955.
Workmen's compensation. Before Judge Lilly. Colquitt Superior Court. April 13, 1955.
Whelchel Whelchel, for plaintiffs in error.
Short Slocumb, Robert H. Cranford, contra.
1. It has been held that acts of ministration by a servant unto himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, or while seeking shelter from a storm during working hours, where the employee intends to return to work after the storm passes, and numerous others, readily conceivable, performance of which while at work is reasonably necessary to his health and comfort, are incidents of his employment and acts of service therein, though in a sense they are personal to himself and only remotely and indirectly conducive to the object of his employment, and that an employee who is injured while in the performance of such acts sustains an accidental injury arising out of and in the course of his employment.
2. If a servant or employee, while engaged in the business of his master, makes a slight deviation for ends of his own, the master remains liable, when the act was so closely connected with the master's affairs, that though the servant may derive some benefit from it, it may nevertheless fairly be regarded as arising out of and in the course of his employment.
3. There is no requirement in our law that the employee at the time of the injury must have no objective other than the service of his employer. It is sufficient if the injury is occasioned by an accident arising out of and in the course of employment. Accordingly, notwithstanding the mere fact that the mission may have two objectives, service as intended by the contract of employment, and also some personal objective of the employee, an injury sustained by an employee under such circumstances is an injury arising out of and in the course of the employment, and is compensable.
4. One of the principal hazards to which a night watchman's employment exposes him is that he is apt to be set upon by robbers, burglars, or vandals. If he is slain during the night while performing the accustomed duties assigned to him or some act incidental and conducive thereto, his death is, within the contemplation of the Workmen's Compensation Act, proximately caused by an accident arising out of and in the course of his employment.
5. The rules stated in the foregoing headnotes are not applicable to cases relating to rest periods during which the employee is separated from his employment, or those in which it is shown that the employee's death results from a personal encounter, wholly disconnected with his employment.
DECIDED OCTOBER 18, 1955 — REHEARING DENIED NOVEMBER 22, 1955.
Mrs. Ida Mae Croft, filed a claim with the State Board of Workmen's Compensation against Ladson Motor Company, and United States Fidelity Guaranty Company, as widow of J. D. Croft on account of the death of J. D. Croft. The matter was heard by Director Tucker, who made an award in favor of the claimant. An appeal was filed to the Superior Court of Colquitt County and that court denied the appeal and affirmed the award. The case is here on a bill of exceptions assigning error on that judgment.
In the hearing before the director it was stipulated that J. D. Croft was an employee of Ladson Motor Company, that Mrs. Ida Mae Croft was his widow and sole dependent, that he had been employed for four weeks, that for the three weeks preceding the week of his death his salary was fifty dollars per week; and that during the week of his death his salary was thirty-five dollars a week. There was no admission as to whether the injury and death arose out of or in the course of his employment, and this issue was to be determined by the hearing.
The evidence showed that J. D. Croft was employed by Ladson Motor Company as a night watchman and that his duties were to patrol the premises of the employer and to protect the building and cars, which were outside the building but near it, against fire and theft. His hours of duty were from 7 p. m. to 7 a. m.
The evidence further showed by the testimony of a witness for the claimant, W. J. Hunter, a policeman, the last person who saw Croft while he was alive, that Croft was last seen alive from about 3:30 a. m. to 3:40 a. m. on May 14, 1954, sitting in a chair in the building of M L Fruit Stand with E. T. Norman, who was operating the fruit stand. The M L Fruit Stand was in a building twenty-five feet off the premises of the employer and about one hundred yards from the building of the employer and even a little farther than that from the cars of the employer. During the same period Hunter was in the M L Fruit Stand building, Croft was there and he left Croft there, sitting in a chair; and that just before the witness left, a cup of coffee had been poured out for each of the parties, E. T. Norman and J. D. Croft. The witness testified that though there was a back door in the building, during the time he was in the building this door was closed. Hunter further testified that he was present when Croft poured two cups of coffee and that he was called back to the store about 5 a. m. where Mr. Croft and Mr. Norman were found dead and that the coffee was still in the cups.
Sheriff E. W. Gordon of Colquitt County, testified for the claimant that somewhere around five o'clock on this same morning he found J. D. Croft and E. T. Norman dead in this same building. Croft, with his throat cut, his skull crushed and his neck broken, was lying near the chair in which he was sitting when last seen by Hunter, and Norman was slumped over in the chair where he was last seen by Hunter with his throat cut and a bullet wound in his head; the back door was still closed. None of the property of Ladson Motor Company had been disturbed nor had its premises been disturbed. He was the first one at the scene of the killing.
J. E. Ladson, Jr., called as a witness by the claimant, testified that two or three nights before he was killed, Croft asked permission from Ladson to make coffee on the inside of the building on the premises where he was employed. This permission was refused, but Ladson told him that he did not blame him for wanting coffee, and he could set it up down on the end of the building, and he wouldn't care if he made it down there. He told Croft if he could rig up something down there on that end he would be glad for him to make it down there because he felt like it would keep him awake. Ladson further testified that no supper hour was provided for Croft and that he had no facilities on his premises for this night watchman to make or acquire coffee. No other conversation happened between Ladson and Croft as to coffee or as to his getting coffee. Nothing was said about his going off the premises to get coffee or anything else. Ladson had checked up on Croft from time to time and he was always on his premises. He had not given Croft permission to go off the premises and Ladson did not know he was off his premises. The witness Ladson testified that by walking to the front of the drive-in (the building in which Croft was found dead) one could have a full view of his premises, or from the back door one could see every part of his building except the far east side where the new cars were, but he didn't think Croft could see his premises if he was sitting in the back of the store.
The evidence also showed that J. D. Croft was employed as a night watchman and that his duties were to patrol the premises of the employer entirely from the outside of the building and that he did not have the right to go inside the building except in case of emergency.
The drive-in was an open-front building about twenty by thirty feet in size.
There was evidence from which the Board of Workman's Compensation could legitimately infer that the employee, Mr. Croft, regularly reported for work and was on his employer's premises except for the time spent in obtaining coffee at the drive-in. His employer testified that Mr. Croft was in his employ as a night watchman at the time that he was killed; that his hours were from 7 p. m. to 7 a. m.; that he had repeatedly checked on Mr. Croft to ascertain if he was performing the duties of his employment, and that he had always found him on the premises.
Counsel for the employer in an excellent brief gives a logical analysis of the questions for decision: 1. Did the death of the employee occur at a place where the employee reasonably may have been in the performance of his duties? 2. Did it occur while he was fulfilling his duties or while he was engaged in doing something incidental thereto, reasonably necessary in the performance of his duties? 3. Was his employment a contributing proximate cause of his death?
This is but another way of saying that in order for the deceased's death to be compensable it must have been the proximate result of an accident arising out of and in the course of his employment.
It is held in Carter v. Metropolitan Life Ins. Co., 47 Ga. App. 367, 368 (2) ( 170 S.E. 535), "It has been held that acts of ministration by a servant unto himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, or while seeking shelter from a storm during working hours, where the employee intends to return to work after the storm passes, and numerous others, readily conceivable, performance of which while at work is reasonably necessary to his health and comfort, are incidents of his employment and acts of service therein . . . though in a sense they are personal to himself and only remotely and indirectly conducive to the object of his employment; and that an accidental injury sustained in the performance of such act is compensable as one incurred in the course of the employment and resulting therefrom." The deceased was, at the time he met his death performing an act reasonably necessary to his health and comfort, and such act was incidental and conducive to the object of his employment. We are of the opinion that, since no means of making coffee was available on his employer's premises, that he did not, by repairing to the little drive-in for the purpose of obtaining it, remove himself from the scope of his employment.
The employer directs attention to the fact that while the deceased was in the "drive-in" he did not keep the premises he was employed to patrol within his immediate vision. The evidence does show that the deceased could not see the employer's lot or building from the position he occupied in the drive-in, and that this condition existed at the instant he was killed and for a brief period of time prior thereto. The employer frankly admitted that by opening a door that was very close to him, or by shifting his position to the front of the building which was only a few feet distant, the deceased could have commanded a view of the major portion if not all of the employer's premises. It is the position of the employer that the failure of the employee to keep the premises of the employer constantly in view, constituted an abandonment of his employment.
This contention is ingeniously presented and worthy of thorough consideration.
In this connection it must be kept in mind that the deceased was only required to exercise reasonable diligence in the discharge of his duties, such as an ordinarily prudent person would employ in similar circumstances.
There are instances where momentary inattention on the part of an employee would normally be expected to result in disaster to his employer's interest, as when the employee is manipulating certain apparatus or machinery, operating a locomotive engine in a densely populated area, or driving a motor vehicle upon a highway. And even in those cases while a failure to maintain constant vigilance would ordinarily constitute negligence on the part of the employee, it could hardly be held to be an abandonment of the work he was employed to perform.
The nature of the employment was not such that it would be reasonably anticipated that damage or destruction of the employer's property would result by reason of the property not being within the range of the deceased's vision for a short period of time.
But it is not ordinarily to be expected that the night watchman will not relax his vigilance to some extent while attending to calls of nature, pausing for refreshments, or resting for a reasonable time during the long vigil of the night.
We do not think that the deceased abandoned his employment by not keeping the premises of his employer within his vision for a few minutes.
The employer contends that while coffee was still in the cups of the deceased and his companion when they were slain, that they may have consumed a first cup of coffee and drunk additional cups of coffee while engaged in a conversation.
We have carefully reviewed the record and do not find proof from which it can be inferred that additional cups of coffee were poured and that the deceased's visit was prolonged while the coffee was drunk. The fact that the coffee was still in the cup is a circumstance from which it might be inferred that the deceased had tarried no longer at the drive-in than was necessary to consume the coffee.
We think the evidence authorizes the finding of the Board of Workmen's Compensation that the deceased's death was proximately caused by an accident arising out of and in the course of his employment.
We have carefully considered cases the factual pattern of which is found in instances when the employee was free to use his rest or lunch period as he liked. This is not a case where the employee's work hours were interspersed by rest periods, but the deceased was drinking his coffee while still actively engaged in the duties of his employment.
Nor does the case at bar belong in the category of those cases in which it is shown that the injury or death of the employee arose out of some personal difficulty or other matters disassociated with his work. One of the most common hazards of a night watchman's employment is that he be set upon by robbers or burglars.
Judgment affirmed. Gardner, P. J., Townsend, Carlisle, Nichols, JJ., concur. Felton, C. J., dissents.
I dissent from the judgment first because the facts show that the employee had absented himself from the premises of his employer and the duties of his employment to a degree that amounted to a temporary abandonment of his employment. While he was only 25 feet from the premises of his employer he was about a hundred yards from the property he was employed to guard. Secondly, I dissent because the evidence demands the finding that the homicide of the employee was caused by the wilful act of a third person directed against the employee for reasons personal to such employee within the meaning of the law. Code § 114-102. There was no evidence which would authorize the finding that the fact that the employee was a nightwatchman caused or in any way contributed to his death. If there had been any such evidence, it would have brought the case within the exception to the rule stated in the above Code section. Pinkerton National Detective Agency v. Walker, 157 Ga. 548 ( 122 S.E. 202, 35 A.L.R. 557); American Mutual Liability Ins. Co. v. Herring, 43 Ga. App. 249 ( 158 S.E. 448). In the absence of such evidence, the rule stated in the Code section applies.