*1 law, demanded, a matter instituted.—the inference value was corporation peanuts or sold to such third that the were powers delivery agent that of general include whose of their time crops. sale of members, attempt by partnership, Any subsequent one of its or 5. interest, convey title, right possession, in other transfer or nugatory peanut crop and effect. force itself is without divisions, foregoing that— follows, has been ruled 6. It what purported excluding transfer trial erred whether or not the peanuts partnership of her interest member of the one not-— trover, partnership plaintiff been dissolved plaintiff in trover had no the evidence demanded possession peanuts, and the trial court title or directing in trover. a verdict for the defendants err Carlisle, P.J., concur. Judgment Gardner, affirmed. Rehearing denied April 2, 19, 1952. Decided March Davis, plaintiff in Farkas, Landau & error. Cody, Rogers McClatchey, Jones, R.
Smith, Kilpatrick, & R. contra.
33805. BIBB MANUFACTURING COMPANY v. COWAN. Rehearing denied 8, April 1952.
Decided March *2 Benton, Jones, Sparks, plaintiff Ed Jones & in error. Wyatt, Morgan Sumner, & contra. (After facts.) stating foregoing J. There was
Wokrill, competent support -evidence to no award of the full board contrary Consequently and was to law. affirming judgment. compensation “To authorize
erred compensation act, appear workmen’s under the it must that the (1) employee’s injury of, (2) arose out in the course of, (3) employment; purview accident was within the 818 concur all must must three of these elements All the act. Fissell, Bryant v. recovery authorized. before proved, 458). State (86 We find no cases L. 72 Atl. N. J. under the workmen’s recover right to
which the the result of ‘horse- accident, which arisen out of act has in the follow- denied has been play’ ‘skylarking’, attention, to wit: States to our United which were called ing cases, (142 Guaranty Green, v. Fidelity Co. & App. 690 Co., 39 Ga. Insurance 464); v. Travelers Maddox Georgia Casualty Martin, (148 307); E.S. Co., 68 Ga. Young Liberty Mutual Insurance 881); v. have followed We seem to E. S. Compensation Law 2in Schneider on Workmen’s
rule stated enough well ed.) ‘The rule is (2d 1829, 523, which is follows: § step aside their workmen that where settled engage horse-play practical joking, so engage in results, and continuing their and accidental work, resulting sport or mischief does some act general where one *3 of not one out a fellow is worker, in to meaning acts.’ within the employment duty charged with the employer was not has been said that ‘the employees any other one assaulted none his to see to Moosbrugger, sportively.’ Hully v. them, wilfully either 1203).” 1916C, R. Atl. L. A. Givens N. J. L. 161 App. 50, Co., v. Travelers Insurance his testimony does not show that himself any and raise conflict injury arose out thus testimony, evidence. relevant stated narrative His form, follows: “Morris one who shoved me down. is the was Hamlin, stepped back mill, and he and He worked Morris lady get up him, check. When I first walked to Mr. let the her get get lady him back her told me tell to and let the Stone to just caught arm and shook a little check, and I him the get get check, back let her Clara bit and told him to and Clara lady working mill, too, same Durand. She next, me stepped got his, and and that left up room. Morris why give fixing get my and all a sudden he I to stub and was off and me out. I was balance at time. me a shove shoved nothing. very heavy. I wasn’t expecting I It wasn’t wasn’t to him he any statement made I not him. had looking at . Mr. Stone up. . As to whether I first walked me since to get back Morris to ‘Paul, me tell something to me first—told said he was he Morris When said get her check.’ lady let that and talk- lady he was When he Mr. Hamlin. said talking about line. both in same They were Mrs. Durand. ing about up. Stone stepped Hamlin. behind She Durand Mrs. mill. employee in the He was simply another layer, just spool charge me, my boss. any way, not in not my superior authority anybody get ask to to tell me to have He did not arm stepped up caught and hold . . I the line. get Morris, and let back, says it. I ‘Get and shook got his and got and he then she hers check,’ did and her he and much . As to how get it. . get mine. I did not I to started arm him the up I and shook elapsed time from the went time accident back until or told him suggested and or two. say minute occurence—I would happened . time Mrs. hand . In that Didn’t take no time to them out. gotten gotten check Hamlin had and Mr. me kidding just with . whether Mr. Stone was . As to check. go up suggested that I a little fun when he trying have suppose line—I get Hamlin out of the get this Morris at all up I there only reason went . . As to whether was. he told I having fun; just me, little because just entering thing him. It was I was into the with reckon. anything I there my job like we did there. part of to do waiting I purpose my check. While was for the spirit of fun get my suggestion, check Stone made this and in a up something it with him I entered into and went said suggested tugged when I sleeve. He *4 up. just That reason up Hamlin, is the I went to walked just I push did not him. shook him. I having fun with him. got stepped back, after he his check and pushed he me I fell when line. whether push out of the As to . . I out. to bit—-well, line he moved. As out of the a little stepped he tugged him again, I back the second time and at came down, part me and I fell and it pushed was all then he the time—all close minute of happened within a thing, same argument any I not had Hamlin and had Mr. together. at scrapping. I not mad any words. We were not was fight or thing me. . . He not mad at The first that oc- him. was curred, people standing than the their checks other there attending business, up their was when I went to Mr. to I Hamlin and did whatever did. There not minute tiying lady . . I was that. to be courteous to the when I asked . Mr. Hamlin back. . to long There was not line. being lady As to whether far courteous to the and there as being point just trying help get one, no her check with one, standing—just ahead where because Stone she say just told me it. I reckon I went over there because Stone suggested tugged it. . whether, . As to I Mr. Hamlin’s after step back, stepped sleeve coat and told him to he back and got stepped then—yes, sir, Mrs. her check he back. got Then he check. things happened Both those before I was shoved.” earnestly
It is contended defendant in error injured engaged in an lady to a compensation. denied While the should not be Workmen’s liberally Act is to be construed in accom Compensation order to plish purposes, beneficent it has never been held its that an compensated employee may during mere injury because of period employment. required beyond dispute justify employee’s such award the must have arisen present In the case it is not contended claimant, acting under injury, the time suggestion any superior, merely accepting direction-of employee he induce another employee defer fellow obtaining ahead him in line matter of pay readily He admits that such an part check. act was no of his employment. Nevertheless, counsel for the claimant cite strongly rely, as two of dissenting do the members this court in opinion majority, upon from the Glens Falls Indemnity Sockwell, Ga. 647), and American Liability Mut. Ins. Co. v. Benford, In the Sockwell case the claimant courteosuly stopped laundry flagged truck when down boys girls some function. however, had ceased He had,
whose automobile fellow completed and, his service to the travelers standing “while *5 pavement, running-board on one foot the one foot on the with door, steering- and one truck, hand on hand the one the on the wheel, apparently truck, the act of back person an by by struck automobile driven drunken at a high speed.” “Foregoing any rate This said: discus- etiquette the or emergency, road, establishing good sion as opinions employer, by will for the as dealt with the rendered single board, director the test of the of the compensation claimants to present case is narrowed to not, determination or whether the monent deceased at by was struck another, the automobile of arose out of (Italics and in the employment.” course ours.) The court further said: “That he was entering pre- paring truck, enter under the evidence, requires no strained regular route, He was construction. under work- protected act he was perils men’s highway. sustained was in the employ- course of his employment.” arose out ment, and of that engaged In the case the claimant was not in “horse- Benford injured play,” but was while work employer for his by one engaged sportive who himself in such conduct and which was' produced by in no wise the claimant. Manifestly, these two injured do not hold that cases one as result of his “horseplay” sportive conduct, or even courtesy, when such injury does not arise employment, out of his is entitled compensation. Cour- tesy quality. an admirable is, course, But even the rendi- courtesy has its limitations. When one tion has himself in established line rightfully to receive pay check, as say here, yield it is or not he will place may justly He dislodged another. position from his whether in interloper, malice or in play, who seeks to empty justify his interference excuse that he was-attempt- render ing to an act of lady, and would have his regarded resulting injury as one out of opinion majority court, In the of this the injury of the out of his employment, arise but was the might result of what be charitably natural denominated as part. conduct sportive on his See “horseplay” Georgia Cas- 881). Martin, Ga. 909 E. ualty S. provided by the court a whole as considered
This case was (Ga. 1945, p. L. by the act of Carlisle, Judgment Gardner, J.,P. Sutton, reversed. C. *6 dissent. JJ., Townsend, concur. Felton an dissenting. This is a workmen’s JJ., and Townsend, Felton recover case, the claimant seeks which pushed a fellow workman hip when account a broken sustained they fall were in line formed to him and caused him to pay. single receive their The director the accident not found horseplay compensable initiated because the resulted findings board, reviewing the the of the by claimant. full The single director, compensable, found that accident as the the employment injuries of the arose out of and the course of the claimant. certainly single support finding
There is evidence of the However, director. since award was reviewed the full court, which having upheld been board, the latter necessary it subject exception here, for judgment is or not there is evidence determine whether this court injuries of the the full board that support the and in course of the arose out of injuries claimant’s resulted from that wilful is contended they horseplay. The misconduct, and also that resulted from this: misconduct will between defenses is wilful distinction these though recovery, even the accident arises the course bar it, it wilful mis- though and even out of employment, arises obstinacy and contemplates premeditation, “the idea of conduct App. wrongdoing.” Little, Armour & Co. v. 83 Ga. intentional (64 707); Code, 114-102, 114-105. Horse- 2d, S. E. §§ contemplates stepping aside from play prankishness, something of fun and not spirit is therefore nevertheless, not bar re- it will employment; participated by the claimant. covery initiated or if was Liability Benford, Co. v. 77 Ga. Ins. American Mutual a matter of fact board found as The full evidence to invalid. There was contentions were these finding. agreed All the witnesses support malice, ill-will, or mutual the result nor intentional, was not testimony the effect claimant’s kind. combat of let the told him to that, when he shook Morris suggestion line, he did at Stone’s in the which go ahead stepped back; that Mrs. spirit courtesy, Hamlin in a check, Hamlin received claim his, received receiving Hamlin came over and act of ant when board authorized find from this testi pushed him. The may been, have mony that, whatever Hamlin’s conduct horseplay expression courtesy an but was the claimant was not fellow-employee. An toward toward a female employee, though though not negligent, even and even fellow expressly assigned recovery bar duty, in itself an will resulting injuries ground therefrom on the that it constitutes employer’s Casualty abandonment of the business. Columbia Parham, 2d, 147); American Liability Benford, App. 93, Mutual Ins. v. supra; Co. *7 Indemnity Glens Falls Co. v. Sockwell, 111, supra. that, is axiomatic where the award of full board is supported by any evidence, it will not be disturbed court. finding The evidence demands a here did on part result from wilful misconduct party; either most favorable the claimant authorizes a that he not and not been motivated prank- instincts of a merely carrying but was ster, directions a fellow spirit helpfulness employee in when caused being back. so, This the board was authorized part find horseplay in shoving Hamlin’s him was horseplay participated initiated or in by him, and would not recovery. bar his judge therefore
We believe that correctly affirmed award board, of the full dissent judgment of reversal. v. BLANCHARD GUY FUNERAL
33819. HOME et al. Rehearing denied April 2, 1952. Decided March