Slaten v. Travelers Insurance Co. , 70 Ga. App. 665 ( 1944 )

Under the facts of this case and the law applicable thereto, the Industrial Board did not have jurisdiction of the claim, and the judge of the superior court did not err in so holding, and in setting the award aside.

DECIDED FEBRUARY 10, 1944. REHEARING DENIED FEBRUARY 22, 1944. Mrs. C. E. Slaten and C. E. Slaten Jr., the widow and minor child of C. E. Slaten, deceased, filed with the Industrial Board, now the State Board of Workmen's Compensation, a claim against Aqua Systems Inc., as employer, and Travelers Insurance Company, its insurance carrier, for compensation for the death of C. E. Slaten. On the hearing before the director, it was admitted that the deceased was employed by Aqua Systems Inc., at the time of the accident which resulted in his death, and that the accident arose out of and in the course of his employment; that he was earning $75 a week at the time of the accident; and that the accident occurred in the State of Tennessee. The employer and its carrier contended that the contract of employment was entered into in the State of Florida, and that since the accident which resulted in his death occurred in the State of Tennessee, the Industrial Board was without jurisdiction of the claim.

T. M. Sullivan testified that he was employed as manager by Aqua Systems Inc., a subsidiary company of Neptune Meter Company, with his headquarters in Jacksonville, Florida; that he sent for the deceased to come to his office in Jacksonville, and there employed him at a salary of $55 per week, and it was the understanding that he would be sent wherever the company desired to send him; that the company was then doing business in Florida, Georgia, North Carolina, South Carolina, Mississippi, and Louisiana, and later began operations in Tennessee; that the deceased was employed by Aqua Systems Inc., just before Christmas of 1940, and went to work for the company the day after Christmas; that he was employed to take charge of the pipe work at the Jacksonville Naval Air Base, and while working there he was sent to other jobs at Savannah, Georgia, and Parris Island, S.C.; that while the deceased was in Florida, his ability was recognized, and he was given larger duties; that when the deceased was specifically employed to do the Candler Field job, his salary was increased in consideration of the fact that he was doing larger and greater duties, and he was given special instruction on the work at Candler Field where he was to be in full charge; that when the deceased came to Atlanta, he was still in charge of the Macon, Savannah, and Parris Island jobs in a general supervisory capacity; that the fact that the deceased lived in College Park, Georgia, did not necessarily influence his selection to take over the job at Candler Field, near Atlanta, Georgia; that the deceased was given instructions later on to look after the job at Tullahoma, Tennessee, but the time he was to go there was left to his discretion; that the deceased paid all expenses and help in Atlanta out of funds deposited in the bank to his personal account; that these funds were furnished by Aqua Systems Inc., and were replenished from time to time, and he had a balance of these funds on deposit at the time of his death.

Mrs. C. E. Slaten testified that the deceased was superintendent of the work at Candler Field for Aqua Systems Inc., and had been superintendent there since October 8, [1941]; that Aqua Systems Inc., also had jobs at Macon and Savannah, where the deceased was an overseer of the work, and where he had foremen in charge of the work; that after he started to work at Candler Field, he was given the Tullahoma and Parris Island jobs, and on these jobs he had foremen over whom he had charge; that he had gone to Tullahoma twice before he was killed; that on these trip, he would go one day and come back the next day; that on the trip on which he was killed he was on his way to the Tullahoma job, and was killed near Jasper, Tennessee; that the deceased was employed at $55 a week, and his salary was raised from $55 to $65, and from $65 to $75 a week; that he was employed continuously with Aqua Systems Inc., from the first day he went to work in January, 1941, until his death; that Mr. Sullivan would give him instructions on the job at Candler Field and at "our home in College Park, Georgia."

E. B. Slaten testified that he was a son of the deceased employee; that his father was superintendent of the job at Candler Field, which took up the major portion of his time, but that he was in charge in a supervisory capacity over several other jobs; that these jobs were at Tullahoma, Tennessee, Savannah and Macon, Georgia, and Parris Island, South Carolina, and he would visit those jobs from time to time to see how the work was progressing; that he was on his way to the Tullahoma job for the company at the time he was killed; that he was killed in the State of Tennessee; that Mr. Sullivan discussed the Candler Field job and various other jobs they had with his father at his father's home in College Park.

It appears from the evidence that the deceased was at the time of his death and had been for more than seventeen years a resident of College Park, Georgia. The director found that in giving the deceased the Candler Field job, the employer, in effect, entered into a new contract with the deceased; that this contract was to be executed and carried out in the State of Georgia; that this contract superseded the original contract entered into between the parties at the time the deceased was employed to do a particular job at the Naval Air Base in Jacksonville, Florida; and the director awarded compensation to the claimants. On appeal, the findings of fact and the award of the director were affirmed by the Industrial Board. But on appeal to the superior court, the judge set aside the award made by the Industrial Board, and the exception here is to that judgment. The question for determination is whether the Industrial Board, then administering the workmen's compensation law in this State, had jurisdiction of the claim in the present case.

C. E. Slaten was employed by the Aqua Systems Inc., during the latter part of December, 1940, to take charge of the pipe work at the Jacksonville Naval Air Base which his employer was then engaged in installing. The contract of employment was verbal, and was made in Jacksonville, Florida, and the employee was to be paid a salary of $55 per week. At that time the Aqua Systems Inc., had jobs in five other states, similar to the one in Jacksonville, and under the contract of hiring, Slaten was subject to be sent to any of the other jobs to which the company might desire to send him. While the employee, now deceased, was on the job at Jacksonville, his ability was recognized by his employer and he was given larger duties and his salary was increased. From there he was sent on trips to inspect the company's jobs at Macon and Savannah, Georgia, and Parris Island, South Carolina. Later on he was transferred to the job at Candler Field, near Atlanta, Georgia, where he was placed in charge as superintendent, and his salary was increased from $65 to $75 per week. The job at Candler Field required most of his time, but he still made trips to the jobs at Macon, Savannah, and Parris Island, and later to Tullahoma, Tennessee, when his employer obtained that job, and he acted in a supervisory capacity over all of these jobs. He was killed in an accident in Tennessee while on a trip to inspect his employer's job at Tullahoma. The deceased was employed continuously with the Aqua Systems Inc., from the time he went to work for that company in Jacksonville, Florida, until the time of his death in Tennessee. It is true that the extent of his duties, and the scope of his work, was enlarged and his salary increased, but there was only one contract of hiring. The employer was engaged in the installation of underground water systems at Army and Naval air bases and had several of these jobs at different places, and the deceased was employed as superintendent and in a supervisory capacity for these jobs at a certain weekly salary. Each job was a separate or distinct unit, but so far as the deceased employee was concerned he was connected with all of them over which he had supervision by one contract, and that contract was made in Florida.

Under one provision of the workmen's compensation act, as contained in the Code, § 114-411, it is provided: "Where an accident happens while the employee is employed elsewhere than in this State, which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this State, and if the employer's place of business is in this State, or if the residence of the employee is in this State; provided, his contract of employment was not expressly for service exclusively outside of the State." Under an application of this provision of the act to the facts as contained in the record, the board did not have jurisdiction over the claim, because the contract of employment was made in Florida, and the employment in which the employee was engaged at the time he received the injury which caused his death was elsewhere than in this State, that is, the accident causing his death arose out of the Tennessee job of employment. The fact that the employee had engaged in work for his employer in Georgia, at Candler Field, which job required the greater portion of his time, would not give the board here jurisdiction of the present claim, because the injury causing the employee's death did not arise out of the Georgia employment. The Supreme Court in answer to a certified question by this court in this case ruled as follows: "As to those employees who have accepted the terms of the workmen's compensation act by the method prescribed in the Code, § 114-201, the bare fact of engaging in work in this State without giving notice of election not to be bound by the act automatically brings the provisions of the act into operation, in so far as injury arising out of theGeorgia employment is concerned, regardless of where the accident itself may occur. In such circumstances the provisions of § 114-411 have no application, and the execution of a contract of employment within this State is not necessary to entitle them to receive compensation for injuries sustained outside of the State; but as to employees who have agreed to be bound by the act by the method prescribed in § 114-110, and who have not engaged in any work within this State, it is essential that the contract of employment be executed within this State, in order that such employees may receive compensation for injuries sustained while employed outside of the State." Slaten v. Travelers InsuranceCo., 197 Ga. 1 (28 S.E.2d 280).

The job at Tullahoma, Tennessee, was separate and distinct from the job at Candler Field, Georgia. The injury causing the employee's death arose out of and in the course of his employment in connection with the Tullahoma job, and the fatal accident he sustained was not connected with his Georgia employment.

Under the facts of this case and the ruling of the Supreme Court in answer to the certified question in this case, the Industrial Board did not have jurisdiction of the claim, and the judge of the superior court did not err in so holding, and in setting aside the award of the board.

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