101 Ga. App. 789 | Ga. Ct. App. | 1960
Lead Opinion
For a claimant to be entitled to compensation under Code (Ann.) § 114-102 of the Workmen’s Compensation Act, the party must show that the employee’s death resulted from an accident arising out of and in the course of his employment. However, the accident cannot be a wilful act of a third person directed against the employee for reasons personal to such employee. The terms “arising out of” and “in the course
A defense is provided for the employer if such injury or death resulted from the employee’s wilful misconduct growing out of his attempt to injure another, but the employer must cany the burden of proof to establish this defense. Code § 114-105.
Where an employee 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. Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706 (165 S. E. 850); Williams v. Maryland Cas. Co., 99 Ga. App. 489 (109 S. E. 2d 325).
Where there is some evidence to support the findings of fact of the Workmen’s Compensation Board, such findings are conclusive on the reviewing court, in absence of fraud. Code § 114-710; London Guarantee &c. Co. v. Herndon, 81 Ga. App. 178 (58 S. E. 2d 510); Employers Ins. Co. of Ala. v. Bass, 81 Ga. App. 306 (58 S. E. 2d 516).
The defense advanced two' arguments which would deny compensation to the claimant. (1) The deceased employee made a wilful attack on Sam Nixon which would be a defense under Code § 114-105, and, (2) even though the. deceased employee was in the course of his employment, the injury did not arise out of his employment.
As to the first contention, there is little evidence to show misconduct on the part of the employee, and some evidence to sustain the contrary. The board was justified in finding that the defense had failed to cany the burden of proof.
Turning to the second contention, there is no dispute that the deceased employee was in the course of doing his work when the injury occurred. It is strenuously contended, however, that it did not “arise out of the employment.” However, the facts
Whether any claimed assault was personal to the employee, in which event compensation would be denied, or involved some facet connected with the deceased’s employment, in which event compensation would be allowed, is a matter of conjecture because no persuasive evidence was adduced at the hearing to substantiate either contention. Both inferences are consistent with the evidence. If the conclusion is reached that death resulted from an assault, such conclusion of fact would not, ipso facto, be tantamount to a finding that the injury did not arise out of the employment. “It is now well settled that the fact that the injury is the result of the wilful or criminal assault of a third person does not prevent the injury from being accidental within the meaning of the Workmen’s Compensation Acts.” Pinkerton Nat. Detective Agency v. Walker, 157 Ga. 548 (122 S. E. 202). Additional facts must be shown from the surrounding circumstances to determine whether or not the assault arose out of the employment.
Where there is indecisive evidence to establish either contention, the decision should be against the party who has the burden of proof. Ordinarily, the burden is on the claimant to show that the injury or death arose out of and in the course of employment. Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440 (92 S. E. 2d 51). However, where an employee is discovered 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. Standard Accident Ins. Co. v. Kiker, 45 Ga. App. 706, supra; Williams v. Maryland Cas. Co., 99 Ga. App. 489, supra. With the presumption raised, the claimant made a prima facie case, and the burden was placed on the defense to overcome the presumption.
In the Francis case the employee was shot as he entered a post office. One of the employee’s duties was to- pick up the mail on his way to work and he was furnished an automobile for this purpose by his employer. The court stated (p. 227) that the presumption disappears “where evidence to the contrary is introduced ... or where facts appear which refute or which are irreconcilable with the 'presumption’ or inference, as in this case.” The court further held that there was an inference that the employee was killed for reasons personal to such employee and this could be raised as consistently as the inference that the employee was shot because of his employment. But this is true in every case where an employee is found dead where he might reasonably be expected in the performance of his duties and there is evidence of an assault. Once this presumption has been properly raised in the claimant’s favor, to require
Whether or not the presumption was rebutted is a question of fact. The majority of the board found that the death of deceased employee arose out of and in the course- of his employment. As there was no evidence to demand, as a matter of law, that the. defense had overcome the presumption, this court must affirm the findings of the majority of the board.
Judgment affirmed.
Dissenting Opinion
dissenting. I think that the award by a majority of the board and the, ruling of a majority of this court are based on false premises and are contrary to rulings by this court and the Supreme Court which are controlling.
The majorities of the board and of this court overlook the fact that the very tenuous presumption that an employee’s accidental death is prima facie presumed to have arisen out of his employment from the naked fact that he is found dead at a place where he might be expected to be vanishes when evidence is introduced into the case which would defeat the presumption. The burden of proof, to be distinguished from the burden of proceeding with evidence, is on the claimant to- prove that the death occurred in the course of and out of the employment. When sufficient evidence is introduced to nullify the presumption above mentioned the claimant must go forward with the original burden and produce other evidence to show that the accident is compensable if the employer has not done so and