55 Ga. App. 17 | Ga. Ct. App. | 1936
Lead Opinion
The exception is to a judgment of the superior court approving an award of the Department of Industrial Delations in favor of "William Caldwell, employee, and against the Georgia Marble Company, employer, and the Continental Casualty Company, insurance carrier. It appears from the record that the Continental Casualty Company was the insurance carrier for the employer’s plant at Nelson, Georgia, and that the Hartford Accident and Indemnity Company was the insurance carrier at other places where the Georgia Marble Company operated, including Griffin, but not Nelson. The Georgia Marble Company' and the Continental Casualty Company, are the plaintiffs in error, and William Caldwell and the Hartford Accident and Indemnity Company are defendants in error. We have first to consider a motion made in this court to remand “this controversy to the Department of Industrial Delations for the purpose of taking the newly discovered evidence set forth in the affidavit of Mrs. A. J. Caldwell, and such other evidence as may be pertinent or material to the issues involved in this case.” This motion avers that “subsequent to the hearing in this matter before the Department of Industrial Delations, and subsequent to the oral argument in . . this court, plaintiffs in error have been furnished with” said affidavit. The purport of this affidavit is that Caldwell received his injury by falling over a box in his home and sticking a splinter in his eye at a time when he was intoxicated, — an incident entirely disconnected with his master’s business. “The design of the workmen’s compensation act is to furnish a speedy, inexpensive, and final settlement of the claim of injured employees. The act abhors and shuns protracted and complicated litigation over the facts of any case. . . For this reason the act makes the finding of the industrial commission upon the facts final and conclusive. The finding of that body upon the facts can not be reviewed in the superior court, if there is evidence to support its finding. Such finding can not be reviewed in the appellate court. The finality of a finding of the industrial commission upon the facts of the case is conclusive and binding upon all courts. The purpose of the act in making such finding conclusive was to avoid the law’s delay, which is often the subject of complaint.” Mwry
Two controlling questions are presented by the record in this case: (1) whether the employee’s injury arose out of and in the course of his employment; and (2) whether his injury was covered by the insurance policy of the Continental Casualty Company, or by the policy issued by the Hartford Accident and Indemnity Company. The Georgia Marble Company was engaged in the business of fabricating marble and erecting its finished product. It also did landscape work where such product was erected. Said company had plants at several places, including Nelson, Georgia. William Caldwell was a “work foreman” for that company, and did landscape work for it. He worked most of the time at Nelson, but was “ occasionally” sent to work at Griffin and other places. Certain marble, “finished at the Nelson plant,” was hauled to Griffin to be used “on a big job” there. Mr. Anderson was vice-president of the Georgia Marble Company. W. H. Caldwell was paid by the hour for his work. W. H. Caldwell testified, in part, as follows: “On Saturday . . , the 13th of April, my boss, Mr. Anderson . . , told me to get ready on Monday to finish up the Griffin job, . . load trucks, and get the amount of everything I had to have on Monday, and early Tuesday morning get down there early enough to do that day’s
P. EL Sharkey testified, in part, that Mr. Anderson was vice-president of the Georgia Marble Company, and was in charge of
Of course a compensable injury under the workmen’s compensation act must arise out of and in the course of the employment. Ga. L. 1920, pp. 167, 168, sec. 2 (d) (Code, § 114-102); Ocean Accident & Guarantee Corporation v. Farr, 180 Ga. 266, 270 (178 S. E. 728). “An injury may occur in the course of the employment, and yet not arise out of it. ‘Arising out of’ does not mean the same as ‘in the course of,’ but the expressions in the act impose a double condition. 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 something incidental thereto. . . The words ‘arising out of the employment’ refer to the causal condition between the employment and the injury.” New Amsterdam Casualty Co. v. Sum
As stated, it was admitted by counsel for the insurance companies that the policy of the Continental Casualty Company covered employees of the Georgia Marble Company at the Nelson plant, and was confined exclusively to that plant; and the policy of the Hartford Accident and Indemnity Company covered the employees of the Georgia Marble Company at places other than Nelson, and did not cover the Nelson plant. It is argued with much force that the Continental Casualty Company is not liable, for the reason that the employee was engaged in work incidental to the work at Griffin when he is alleged to have been injured. Our view of the matter is so well expressed by the Department of Industrial Delations that we quote as follows from its findings: “Enough evidence has been quoted to show that, as a matter of fact, Mr. Caldwell was injured while engaged in work at the Nelson plant, which accident arose out of and in course of his employment; and though preparing to go to another operation, he was still an employee of the plant at Nelson, and therefore unquestionably comes under the policy issued by the Continental Casualty Company.” “Industrial accident insurance policy, specifically limited to insured employer’s automobile body manufacturing plants in Manhattan and Brooklyn, held not to cover injury to employee in insured’s New Jersey plant, on theory that such employee was only temporarily employed in New Jersey, and that work he performed there was incidental to work carried on by insured in New York, where operations in each plant were independent of others, and such employee, who lived in Manhattan, had worked at New Jersey plant for three years.” Szabo v. Standard Commercial Body Corporation, 221 App. Div. 722 (225 N. Y. Supp. 332). While the facts of the case from which the quotation is taken are very different from those in the case at bar, we think the ruling in the Szabo case is pertinent to the question under consideration. We hold that the affirmance by the superior court of the conclusion of the Department of Industrial Delations that the Continental Casualty Company was liable for the accident at the Nelson plant of the Georgia Marble Company was correct.
Judgment affvi'm.ed.
Rehearing
It is averred in the motion for a rehearing, made by counsel for the Continental Casualty Company, that this court was in error in stating in the opinion rendered that the Georgia Marble Company “had plants in several places, including Nelson, Georgia, and Griffin, Georgia,” for the reason that said company “did not have a plant at Griffin.” This criticism is correct, for it does appear that the Georgia Marble Company had no plant at Griffin, and that the applicant was injured while mailing preparations to go to Griffin to perform work there connected with the erection of marble fabricated at the Nelson plant. The correction has been made in the original opinion. In affirming the award of the single director, the full board said: “The Continental Casualty Company is the insurance carrier for the Nelson plant of the Georgia Marble Company, and the Hartford Accident and Indemnity Company is the insurance carrier for all the operations of the Georgia Marble Company other than at the Nelson plant.” An examination of the record satisfies us that this statement is true. We do not perceive that the fact that the Georgia Marble Company did not have a plant at Griffin can have the effect of weakening or changing the soundness of our conclusion that there was evidence to support the finding of the Department of Industrial Eelations that the Continental Casualty Company was the insurance carrier that was liable. Neither do we find any satisfactory reason for changing our view that there was competent evidence to support the finding of the Department of' Industrial Eelations that the accident arose out of and in the course of the employment. The motion for rehearing is therefore denied.