*1 87 Cobb, Jr., III, L. Paul Bailey O. appellant. for Clifton Bryant Huff, Porter, W. District Attorney, Daniel J. Assistant Attorney, District appellee. FORD,
68645. BOB WILSON INC. FOLDS. 601)
Benham, Judge. Appellee sued allegedly a bonus due under ployment appeal contract. In this from judgment jury entered on a verdict for appellee, the sole enumeration of error is that the trial erred failing grant appellant. a directed verdict for Three grounds for the motion were appeal, raised the trial court and on one, only but we need dispositive address since it Ap- of this case. pellant argues appellee produce failed to evidence of damages support any sufficient against appellant. verdict agree. We damages evidence of appellee’s consisted of calculations based on his opinions estimates and volume of business con- ducted appellant which be pertinent would to"his contract and on hypothetical estimates and prices testimony and costs witnesses. “The specula- cannot left damages tion, conjecture guesswork. Development Corp. Ga. v. [Cits.]” Berndt, 277, The evidence offered this case on the issue of damages specu- was no more than lation and guesswork, directed verdict for appellant was de- manded. Id.
Judgment Banke, J., J., reversed. P. and Pope, concur. Decided November
Rehearing denied December Burch,
John V. for appellant. Weiner,
Paul S. for appellee.
68661. EDWARDS v. STATE OF GEORGIA.
McMurray, Chief Judge. This is a compensation claimant, workers’ Queenie case. The Ed- wards, has September been employed secretary since with Labor, the State Department Employment Agency. On nearby slipped res- fast-food fell at 18, 1982, claimant March manager. getting claim- for her office while she was taurant (although she received for several weeks ant was unable to convalescence), eventually salary pay during and she sick full judge compensation. applied law The administrative for workers’ dissent) (with benefits, but awarded Board one *2 the full the not injury superior did that the claimant’s on the basis court reversed employer’s of her business. course out of and arise regularly undisputed obtained lunch It manager, she had considered testified and the claimant the office job cov- the task was duties. She contends of her normal task as one catch-all, “other under the ered in her formal as managers.” by supervisors assigned further The claimant usually period man- obtained her when she that the time maintained ager’s While the her own lunch break. lunch did not coincide with regularly procured acknowledged manager claimant his that the office desk, his he consid- at lunch for him so that he could assigned personal of claimant’s favor and one ered this service a usually his duties; claimant obtained he also believed that the during her lunch break. own only injuries of and is, course, which arise out axiomatic that It compensable are under Workers’ in the course of (4). Ordinarily, Compensation § 34-9-1 whether an OCGA Act. employment is of fact and in the arose out course by any may supported evidence, award, not be dis if the Board’s turbed. Employers App. Wausau, 621 Ins. 139 Ga. Davidson v. (229 97) (1976); Liability Employers Carlan, Ins. Co. v. Mut. SE2d (121 316) judice App. 104 Ga. 170 SE2d We find case sub general to fall within the rule. manager that the could direct the Board determined per- proper
ployees jobs would facilitate the to do various other to remain in the and it was his decision formance of secretary get office, lunch. Even work and send the continue to personal though manager considered this to be a favor to ample him, at the for the Board to determine that the evidence was doing anything slipped of a time she and fell the claimant was personal benefiting employer nature; claimant was and that the manager’s allowing obtaining him to lunch and continue office at his desk. performance injured a task is while
When employer, Parker he is the Act. which is of benefit to the covered (3) (236 915); App. 711, Co., 712 SE2d Glen v. Travelers Ins. 142 Ga. (159 300); App. Merck, Crowe v. Falls Ins. Home Indem. v. 117 Ga. 163 Co. 75); Larson, 1A Co., Work- 145 Ga. Having Compensation Law, 27.00, §§ determined that men’s 27.40. from which her em- performing the claimant was while a task benefit, benefits properly derived the Board awarded claimant. & Fidelity Guaranty U. S. Co. upon reliance
Skinner, Liability and American Mut. 823, Ins. Co. v. misplaced. Ga. 378 SE these cases, the scope claimant was not of his task which he of no the employer. undertook was benefit to
The award supported by of the full Board was under “any Accordingly, reversing evidence” rule. erred the award of the Board. Banke,
Judgment J., Birdsong, J., Carley, reversed. P. P. Benham, JJ., Deen, J., Sognier, Beasley, concur. Pope P. JJ., dissent. Decided November
Rehearing denied December Eisner, A. Christopher Robert Knighton, G. for appellant. *3 Hammond, Cullen A. for appellee.
Deen, Presiding Judge, dissenting. noted by
As the majority, whether an in injury arose out of and the course of is usually question cases, of In fact. some however, the Utz v. presents issue a mixed question of and fact law. Powell, 601) (1982). 160 Ga. I consider this case be within to the category. latter
“Under liberal construction the statute [presently OCGA 34-9- § injury includes in doing received an injured employee act which the 1] employed directly was perform thereto, to or an act incidental reason- ably necessary in performance of the employed act he perform. was to If in performance directly of an act which he employed do, was to an act reasonably necessary to be done in order to perform the act do, employed he was to employee the receives injury, accidental such injury compensable. is If act the does not come within either of these classifications, the is injury compensable not . . . act [W]hether comes within either classification is the involves U. & particular terms the S. Fidelity contract of employment.” Guaranty Skinner, Co. v. (1939) (empha- American Lemming, Mut. Ins. supplied); sis see Liability Co. v. also SE Lemming, (on where an of a corporation was adjacent business) a lot to the place company while on time build- turkey pen ing corporation’s for the president at the latter’s instruc- turkeys, raising to tions, corporation’s business was unrelated and the circumstances, not it could under those Supreme Court held that arising out of and resulted an accident said “that business, testi- notwithstanding in the course of he that the directors knew company that mony president therewith; in that mill connection raising turkeys using and labor do; him he had instructed to that anything to he do fit; do he saw that anything direct the to to Lemming jobs,’ do ‘all their directors called on the officers and keeping separated regular from his jobs the odd were not rule in majority in While the repair.” mill houses Id. at 380. na- in of this appears compensation cases jurisdictions allow em- upon the ture, where act conferred some benefit adopted such a liberal view. yet our has ployer, Supreme Court Lemming valid, of Skinner Supreme Court cases this dispositive precedents applicable to case. binding, and secretary, directly in as a case was appellant fetching include fast specified job certainly did not only pos- manager’s lunch. The “company” food on time for the office de delivery such service be a justification finding sible facto catch-all, i.e., secretary was “other duty appellant As job description. contained assigned,” concluded, however, must properly language be construed of an contemplating concerning running activities security delivery service. Under office and not those of a fast-food Skinner seriously provid- cannot be contended that reasonably necessary such a service to be done order to ing food is perform specified for which those secretarial duties hired. Lemming distinguishable
The majority evidently finds that turkey pens corporation, whereas building did benefit case, benefited the fetching manager’s the instant How- at his desk. allowing manager continue ever, Department to the of Labor still did not arguable benefit *4 appel- the reasonably necessary render that task and incidental to Pepperell, Hall v. West Point App. Ga. regular lant’s work. Cf. Co., v. Maryland Pike Cas. 659) (1974); App. 78) (1962). Moreover, of Department if the Labor’s benefit remain at his desk manger’s opportunity in this case to Lemming work, bene- enjoyed similar surely corporation the in to at while corporate in that able president fit the president’s personal care business. less valuable took of in- regard, Lemming virtually indistinguishable this case. stant in Lem- the rule years ago,
Over this writer noted that seventeen ming contrary many “is itself trend in jurisdictions,” to the West Co., brook Accident &c. Hartford (1967), Lemming but at that nevertheless followed time. (and Perhaps it be re-emphasized minority unpopu should lar) view necessarily is not Extending incorrect view. rationale majority opinion conclusion, if logical to its a state an injury up suffered on state time while putting political campaign head, posters department for his arguably be would com pensable employer enjoyed because the a benefit from the political activity. Similarly, should a state while boat, on a department head’s or in procuring fishing hunt equipment boss, hours, for his ing during regular working under the majority opinion the employee arguably would be entitled workers’ compensation. This unsavory promoted outcome is majority opinion, Lemming. in of ignorance
In summary, Georgia the law in does not allow compen- workers’ sation a case In Skinner and nature. our Su- preme adopted Court minority what is now jurisdic- rule in other Nevertheless, tions. rule binding, remains valid and arid the superior court application below was correct its of that rule. Ac- I cordingly, respectfully must dissent. Judge, dissenting.
Beasley, I concur in the result reached the dissent but for the following reasons: is whether the injury arose out of course
of the appellant. OCGA 34-9-1 §
Claimant was as a secretary/typist with the State La- Department, Employment bor Her Agency. supervisor regu- larly go asked her out lunch so he keep working. Her description job did not expressly duty, make this a but description that, did include a provision in addition to her listed du- ties, she “perform was to other duties assigned by the office man- ager.”
Assuming supervisor that her office manager, duties which he her to ask to do would have to come within range of reasonably contemplated nature secretary/typist. There is no a supervisor’s fetching normally lunch is a part of secretary/typist’s duties. Going for her supervisor’s lunch involved no typist secretarial functions and no functions, activity nor was such an incidental either these cate- gories work.
The activity did not within come description duties ex- pressly. certainly And portion did not come within that of the job required perform assigned, be- *5 assign supervisor her evidence that
cause there is no thought apparently he go get fact, he matter of his lunch. As a her to getting thought authority, her was it on she as he have such did not own lunch hour and duty. assign it to her as not he said he did required, part supervisor showing of his as was that the There is no period through responsibilities, employment which the lunch to work simply employees. normally provides forego He volun- its to all of the State teered to period their com- to continue his lunch required employment any showing it, employer. that his mon Without supervi- gratuitous activity act on but was a commendable such sor’s part. support assignment to his could not work of This volunteer secretary/typist getting He could not his lunch. of the task assign- secretary/typist assignment unless such to his make such an ment was ble from it or from ties related to a reasonably description specifically or deduci- within her is bounded du- clause which still
the catch-all job. secretary/typist refused, he Had she compelled He could her for insubordination. her do it or cite have personal get only impose good favor. his lunch as a nature to on may keep prompted acquiescence, have been as it Thus her report good supervisor gain good please or favor and record or arising out her em- it. Her em- him, into one convert her action from ployment, regardless did not pressured she felt to do of how regarding ployer’s labor, of the laws business was the administration supervisor’s public agency. Going lunch, when there for her out Department Employ- showing the Labor that the business of was no simply required Agency it, necessitated it or ment particular job. scope she did Whether of her duties outside controlling. company time is not it her own time or on on undisputed application leads to the facts of the law to the performing a secre- the duties of was not conclusion that the claimant reasonably tary/typist, within and as as defined any injury. scope position, was there time of Nor of such a at the requiring supervisor employer emergency quish agency to relin- period might him to re- therefore allow and which objective quire get be, one, as it must The test is an her to his lunch. secretary/typist doing thought supervisor it and whether coverage whether the latter on her time is as inconclusive own company subjective during thought doing time. These are she was outright not it was within the whether or not establish factors and do scope Department. the Labor of her employment,” determining it is the “the what constitutes scope, employees range and cer- not the who decides its focusing tainly fact, here on the state is a law. It supervisor. agency and her both activity support finding evidence here does not was a part her employer. claimant’s as defined activity employee engaged
Whether not the at the Anything of injury employer dangerous time is a test. benefited co-worker, per- does so to relieve no how matter sonal business of the aided which the helping *6 in, engages long keeps working so as the relieved on the business, qualify. Rather is the of the in- nature position, jured work and to the em- benefit work, out of arising co-employee’s the relieved should apply. court reversal of Board award be af- should
firmed. I Judge am authorized to state Presiding Judge Deen join in Pope this dissent.
68670. BANKS al. v. CARTER et Judge. Sognier,
Barbara Banks Melvin brought against action Leon Carter Joseph Pierce general damages for punitive as a result of a automobile, collision by Pierce, between Carter’s driven and Banks’ parked unoccupied Honda granted automobile. trial court summary the motions for judgment by filed Pierce on and Carter basis that Banks was the real party interest and appeals. Banks
Appellant purchased liability automobile policy insurance (Nationwide) Nationwide Mutual Fire Company Insurance February provided 1982 which optional collision for the coverage ve- hicle and also subrogation agreement. contained a After the accident on June appellant and, filed a claim with Nationwide pursu- ant to her coverage, collision received a check $3508.14 which she endorsed over to the co-payee, held bank which the lien on the automobile’s Appellant title. subsequently transferred title the au- tomobile to It salvage. Nationwide appel- uncontroverted that lant never signed any assignment or “loan receipt” connection with her claim Appellant with brought Nationwide. then against this suit appellees seeking between the difference value the Honda im- mediately and immediately before A after collision. filed suit after appellant’s suit later Nationwide was dismissed the insurance company.
Appellant trial erroneously granted appellees’ contends the summary motions for judgment, granted appellant on the basis that interest, was not the party real appellees present because failed to any assigned cause action Na-