Ladson Motor Company v. Croft ( 1956 )

Mobley, Justice,

dissenting. “The words ‘in the course of the employment’ relate to the time, place, and circumstances under which the accident takes place, and an accident arises in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto.” New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 688 (118 S. E. 786); Thornton v. Hartford Accident &c. Co., 198 Ga. 786 (32 S. E. 2d 816).

Did the accident in this case arise in the course of the employment; in other words, first did it occur during the period of employment? That the accident did so occur is unquestioned. Next, did it occur at a place where the employee could reasonably have been expected to be in the performance of his duties? The facts here show that it did. As a night watchman his duties were to watch a building and an adjoining lot on which automobiles were parked, and to protect the premises and the cars from fire and burglars. He was not permitted to enter the building; he was an outside watchman. He could have performed his duties off the premises as well as on, and he was not restricted to the premises. He had long hours — from 7 p. m. to 7 a. m. The evidence of the employer demonstrates that, in the performance of his duties, a watchman might reasonably have been at the fruit stand in question, which was only 25 feet from the premises and from which he could perform his duties of guarding the property from fire and burglars.

Keeping awake is always a problem with a night watchman, especially with one such as we are here dealing with, who had nothing to do but watch his employer’s property. This watchman had asked his employer for permission to make coffee in the building which he was to watch. The employer had refused to allow coffee to be made in the building, but at the same time had told the employee that he could make it outside the building; that he thought the employee should make coffee to help keep awake; that a plug or something would be fixed outside the building for the purpose. No plug had been fixed at the time the employee died. The employer was asked “Q. In other words, you had given him permission to make coffee if he could find a place and have coffee?”, and he replied: “That, is right. I told him if he rigged up an apparatus down there on that end of the building it was absolutely all right for him to make it, and he did not turn around and say ‘Do you mind me going down there and making coffee with E. T.?’ [The person found dead with the deceased employee.] If he had said that I would have said it was all right.” Thus the employee had permission to make coffee if he could find a place to make it, and he did find such a place at the fruit stand.

This evidence shows that the employee could reasonably have been expected to be at this fruit stand in the performance of his duties, and, in fact, his employer would certainly have expected it.

Next, was the employee fulfilling his duties or engaged in doing something incidental thereto at the time the accident occurred? “Such acts as are reasonably necessary to the health and comfort of an employee while at work, such as the satisfaction of his thirst, hunger, or other physical demands, or protecting himself from excessive cold, although personal to himself and not strictly acts of service in his employment, are nevertheless incidental to the employment, and injuries sustained in the performance of such an act are generally held to be compensable as arising out of and in the course of the employment.” 58 Am. Jur. 742, § 236; Thornton v. Hartford Accident &c. Co., supra; Employers Liability Assurance Corp. v. Pruitt, 63 Ga. App. 149, 151 (10 S. E. 2d 275); 1 Honnold’s Workmen’s Compensation 379-384, § 111.

Thus the employee was doing something incidental to' his employment, i.e., making coffee.

The next question is did the accident arise out of the employment? An accident “ ‘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 cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and. not common to the neighborhood, . . . and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” New Amsterdam Casualty Co. v. Sumrell, supra; Fried v. United States Fidelity &c. Co., 192 Ga. 492, 495 (15 S. E. 2d 704).

Inasmuch as the employee in this case was found dead at a place where he might reasonably have been expected to be in the performance of his duties, a natural presumption arises that his death arose out of and in the course of his employment. Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706 (5). In the report of the last-cited case, it appears that the deceased was a night watchman, who was found in the basement of his employer’s premises, his body pierced by bullet wounds. There appears no> evidence that the premises were molested in any way. The doors of the building wherein he was found were locked, one of these doors being of a type which latches upon being closed. It was said: “So where a night watchman is found dead in a place where he might reasonably be expected to be in the performance of his duties, the natural presumption arises that his death arose out of and in the course of his employment.” In view of the presumption, there would be no further burden upon the claimant to establish that the accident arose out of the emplo/yment and in the course thereof. If the employer contends that this is not true, then the burden is placed upon him of offering evidence to rebut the presumption, and none was so offered in this case. If the employer contends that the employee was or might have been killed for reasons personal to the employee, or by reason of revenge — • which, under Code § 114-102, would not be a compensable injury within the meaning of the Workmen’s Compensation Act — the burden is upon him to introduce evidence in proof of that contention. “If the employer asserts or relies upon exceptions, it is his duty, and upon him rests the burden, of proving the facts upon which the exceptions depend.” Pinkerton National Detective Agency v. Walker, 157 Ga. 548, 552 (122 S. E. 202).

Justice Head authorizes me to state that he concurs in this dissent.