Liberty Mutual Insurance v. Scoggins , 72 Ga. App. 263 ( 1945 )

1. The finding of the State Board of Workmen's Compensation that the claimant's injury arose out of and in the course of his employment was authorized under the facts of the case.

2. Added peril which is the result of mere negligence and not of wilful misconduct is not a defense such as will bar recovery in compensation cases.

DECIDED MARCH 15, 1945. REHEARING DENIED MARCH 28, 1945. Charles W. Scoggins filed claim with the State Board of Workmen's Compensation for the loss of the use of his left hand alleged to have been the result of an accident arising out of and in the course of his employment. At the first hearing, before director Harry E. Monroe, compensation was denied under the finding that the accident did not arise out of or in the course of his employment. The claimant, being dissatisfied with the award, appealed to the full board which reversed director Monroe and entered an award in favor of the claimant. From this award, Southern Brighton Mills, the employer, and Liberty Mutual Insurance Company, the insurance carrier, appealed to the superior court of Floyd County, where the appeal was denied and the award was sustained. To this judgment the defendants except, and assign error on the failure of the court below to rule that the award was made without and in excess of the powers of the board; that there was not sufficient competent evidence to support the award; and that the award was contrary to law.

It appears from the record that the claimant had been employed by Southern Brighton Mills for about eighteen months prior to the date of the injury. On the morning of the accident he had been sweeping around the cards. The building is a two-story affair, and the claimant's normal duties as a sweeper were on the second floor. Sometime during the morning of September 8, 1943, he was told by one Summerville, the foreman in charge, that he was supposed to put laps on the elevator. The elevator, or lap conveyor, was an apparatus devised for transporting laps or fabric from the second floor to the first floor. The conveyor was constructed in a chute or well which was built outside of the building similar to a chimney. The elevator shaft had openings on the first and second floors almost like fireplaces, which were about four feet by six feet in dimension. In this shaft, belt chains operated on sprockets located at the top and bottom of the shaft. To these chains, placed approximately three feet apart and parallel, hooks were attached on which iron rods carrying the laps could be placed; thus when the chains were rotating they became an endless conveyor on which laps were transported from the second to the first floor. The conveyor was operated by reversible electric switches, one being located on the first floor and another on the second floor. The claimant had never operated this conveyor prior to the time of the accident and was not familiar with the kinds of laps or fabrics that were to be sent to the floor below. He had been given no instructions as to the operation of the conveyor, nor as to the kind of laps to send down. He was a young man, eighteen years of age. He desired to go to the first floor to inquire as to the kinds of laps he should be sending down, and climbed down the conveyor, which at that time was not in operation, using the hooks on the chains more or less as a stepladder. Upon reaching the bottom and without emerging he called to his coemployee, Lackey, either to ask what type lap was to be sent down or to say that there were no more laps to be sent down. The evidence is in conflict as to the exact conversation that took place. At the suggestion either of Lackey or the claimant the motor which operated the conveyor was started and the claimant was riding the conveyor back to the second floor. As the conveyor reached the top of the shaft he attempted to get out of the shaft and actually stepped over the wooden plank which formed a sort of guard three feet high to the entrance of the shaft at the top when one of his feet slipped and he slung his hand around and in some manner it was caught between the chain and sprocket on which the chain ran. In an effort to get the conveyor stopped, he called out, and at the time it was first stopped, only a small part of the fleshy section between the thumb and index finger was entangled. The conveyor was subject to be reversed, and while attempting to extricate Scoggins from the conveyor chain, a coemployee ran the conveyor in the wrong direction and almost the entire hand became enmeshed between the chain and sprocket and as a result the claimant's hand was seriously injured. There was no published rule prohibiting the use of the conveyor in the manner described which had been approved by the State Board of Workmen's Compensation, and the overseer, Mr. Holmes, testified that upon investigation after the accident he had found that it had been a common practice during the few months prior to the accident for employees to ride this conveyor, and that it had been his custom to discharge every employee caught riding it, but that he had not discharged one for a period of more than a year prior to the accident. The claimant testified that he had seen other employees, at least two, riding the conveyor; that he had never heard of anyone's being injured thereon; nor had he ever been instructed not to ride the conveyor. There is evidence that he could have used either of two stairways in going to the first floor, one at a distance of four hundred feet from the conveyor and the other some thirty feet away, but that he elected to go by way of the conveyor. Following the accident the claimant was given first-aid at the mill by a nurse, and later treated by the mill's physician. As a result of the injury he was forced to remain away from work for a period of five months. 1. The evidence conclusively shows that the claimant, upon no personal errand or mission of his own, went to the first floor from the second in the lap conveyor, seeking instructions concerning the performance of the job to which he had been assigned; that he had never worked at this job before and was inexperienced in the operation of the lap conveyor; and that the employer at the time of assigning him to the job failed to give him instructions concerning the performance of the work. Certainly he was furthering his employer's business in seeking information which would enable him to perform the task to which he had been assigned. Thus, without more, we must conclude that the accident and injury resulted in the course of and out of the employment. It is contended, however, by counsel for the defendant that in order to meet the requirements of the definition of "arising out of and in the course of the employment" (Code, § 114-102), the claimant must be shown to have sustained his injury at a place where he reasonably could have been in the performance of his duties, citing EmployersLiability Assurance Corp. v. Woodward, 53 Ga. App. 778 (187 S.E. 142), and that he could not reasonably have been expected to be in the conveyor shaft, an admittedly dangerous place, in the performance of his duties, and that by entering this dangerous place he placed himself outside the scope of his employment. From an examination of the Woodward case, we observe that the rule stated there is a quotation from the opinion of Judge Bell in New Amsterdam Casualty Co. v.Sumrell, 30 Ga. App. 682 (2), 688 (118 S.E. 786), and there Judge Bell relies upon Fournier's Case, 120 Me. 236 (113 A. 270, 23 A.L.R. 1156), as authority. The Fournier case is strikingly similar in principle and fact to the instant case, but compensation was denied there because the employee had been expressly forbidden to use a rope hoist in going between floors, and testified to that effect at the hearing. Such testimony is nowhere to be found in the present case. The claimant repeatedly denied knowledge of any rule against using the conveyor to ride upon, and nowhere is this testimony contradicted. The record shows, however, that the employer knew of the practice of the employees' using the lap conveyor in going back and forth between floors, and while he had prohibited its use for this purpose by discharging, in individual cases, those so using it, he had not made its prohibition generally known either by publishing a rule against the use of the conveyor in such manner, or by posting signs at or near the conveyor forbidding its use. Moreover, the last instance wherein he had indicated his disapproval had occurred more than a year prior to the accident, and in view of the fact that it is shown that the practice had continued and that the claimant had seen, at least on two occasions, other employees using the conveyor for the purpose to which he himself put it, we cannot say as a matter of law that his entering the conveyor shaft was unreasonable or constituted wilful misconduct such as to bar his recovery.American Mutual Liability Ins. Co. v. Smith, 67 Ga. App. 581 (21 S.E.2d 343). The case would not come under the provisions of the Code, § 114-105, which provides: No compensation shall be allowed for injury or death due to the employee's wilful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injure another, or due to intoxication or wilful failure or refusal to use a safety appliance or perform a duty required by statute, or the wilful breach of any rule or regulation adopted by the employer and approved by the Industrial Board (State Board of Workmen's Compensation), and brought to the knowledge of the employee prior to the accident. The burden of proof shall be upon him who claims an exemption or forfeiture under this section; and the rulings of this court in Shiplett v. Morgan, 58 Ga. App. 854 (200 S.E. 449), American Mutual Liability Ins. Co. v. Hardy, 36 Ga. App. 487 (137 S.E. 113), and IntegrityMutual Casualty Co. v. Jones, 33 Ga. App. 489 (126 S.E. 876), which hold that when a rule is not approved by the board (and no such rule had been approved by the board in this case), the violation is not wilful misconduct. On the question of the necessity of prior knowledge of the rule by the employee, seeAmerican Mutual Liability Ins. Co. v. Smith, supra.

2. As another defense, counsel for the defendant seek to introduce the doctrine of "added risk" or "wanton incurrence of special danger," citing 71 C. J. 403 (e), where it is stated: "An accident can not be said to arise out of the employment where it is due to a new and added peril to which the employee by his own conduct has needlessly exposed himself, unless there has been acquiescence by the employer." It is striking that Corpus Juris cites some thirty-five cases as authority for this doctrine, everyone of which is an English case. The English courts inadvertently started the expression, "incurs a danger of his own choosing" in the much-cited case of Brice v. Lloyd (1909), 2 K. B. 804, which has led to much confusion in the English compensation cases. If a court wishes to deny an award on the ground that the injury did not arise out of the employment there is adequate language available without resorting to the wrongful use of the words "added risk." Horovitz On Workmen's Compensation, p. 131. As Justice Frankfurter said in his discussion of "assumption of risk" in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54 (1943) (63 Sup. Ct. 444, 87 L. ed. 610, 143 A.L.R. 967), added risk began life as a literary expression; its felicity led to a lazy repetition, and repetition soon established it as a legal formula, indiscriminately used to express different and sometimes contradictory ideas. In Associated Indemnity Corp. v. Industrial Accident Commission, 18 Cal. 2d, 40, 46 (1941) (112 P.2d 615), where the superintendent rode on a non-passenger switch engine, rather than walk, and sustained a broken leg in stepping off to avoid steam, Carter, J., said: "The doctrine urged by the petitioner [added risk] must be applied with extreme caution for the reason that it is barely distinguishable from the rules of contributory negligence and assumption of risk which are not applicable in compensation cases. Indeed, it may well be asserted that the doctrine of ``added risk' — that is, where an employee assumed a risk greater than that usually incident to his employment, he can not recover — can not be followed in California because it is in effect nothing more than contributory negligence." Our compensation act specifically obliterated the common-law defenses of negligence and assumption of risk (Code, § 114-206), and did not mean to leave open the identical defense for the employer by changing its name, and this is so well known as to require no citation of authority. It is entirely true that the employer may define the limits of the employee's sphere of employment by prohibitions, rules, and regulations, and if the employee violates these he is outside the scope of his employment, and any injury sustained outside the scope of the employment is not compensable. In the instant case, however, the employer had not to the knowledge of the employee so limited the employee's sphere of employment by publishing a rule, or otherwise prohibited the use of the conveyor to ride upon, and it is clearly shown that, to the knowledge of the claimant, it had been the practice of the employees to make such use of the conveyor. We are of the opinion, therefore, that the finding of the board that the injury arose out of and in the course of the employment was authorized and that the court below did not err in affirming the award.

Judgment affirmed. Sutton, P. J., and Parker, J., concur.

ON MOTION FOR REHEARING.