41 Ga. App. 133 | Ga. Ct. App. | 1930
Lead Opinion
Mrs. Birdie Sprayberry filed with the industrial commission a claim for compensation against General Oglethorpe Hotel Company as the employer, and Independence Indemnity Company as the insurance carrier. The industrial commission found against the claimant. This judgment was, on appeal to the superior court, affirmed. The sole issue presented for determination is whether the accident upon which the claim was predicated arose out of and in the course of the claimant’s employment. It is undisputed that Mrs. Sprayberry was the housekeeper of the hotel, and lived in the hotel, occupying a room on the first floor; that on the evening of December 13, 1927, she was injured by a fall from the elevator in the hotel, which she had entered with the intention of returning to her room after a visit to a guest of the hotel. Mrs. Sprayberry testified that she was the housekeeper of the hotel, that her duties as such consisted in looking after the guests and the rooms of the hotel, and, in answering complaints from the guests, that she lived in the hotel and was required to be there day and night, that she received for her services $100 per month, including her room and board, which amounted to $150, that about nine o’clock on the night of the accident, in response to a call to come to the room of one of the guests of the hotel, she
The claimant contends that, when the accident happened, she was about the business of her employment as housekeeper for the hotel and in the discharge of her duties as such, and that therefore the accident arose out of and in the course of her employment. The hotel company and the insurance carrier, on the other hand, contend that the claimant, while in the elevator at the time of the accident, was not in the discharge of her duties as housekeeper for the hotel, but was acting outside of and beyond her duties as such. They contend that her presence in the guest rooms of the hotel was not for the purpose of attending upon any duty incident to her employment as housekeeper of the hotel, but that she was in the rooms in company with another woman and two male guests of the hotel in attendance on a party where intoxicating liquors were being served, that she had therefore abandoned the duties of her employment and was on a mission purely personal to herself, and that, in leaving the party and in proceeding to the elevator, she was proceeding to her room for the purpose of getting her hat and thereby making preparation for a contemplated ride with one of the guests of the hotel who had been in attendance on this liquor party, and who was in the elevator with her, and that she, at the time of the accident, was still disassociated from the duties of her employment and was still on a mission purely personal to herself.
Mrs. Sprayberry further testified, that on the occasion of her visit to the room in the hotel to which she claims she had been summoned on a matter respecting her duties as housekeeper, no liquor was served, and that she had not drunk any liquor that night, that she had no engagement to go to ride with any one, and was not returning to her room to make preparations for that purpose. A bell boy of the hotel, who was introduced as a witness by the hotel and the insurance carrier, testified that, on the evening upon which Mrs. Sprayberry was injured, he responded to two
Did the evidence authorize the industrial commission to conclude that Mrs. Sprayberry at the time of the accident was not in and about the duties of a housekeeper for which she was employed ? Other than the evidence of Mrs. Sprayberry to the effect that her duties were to look after the guests of the hotel and the rooms, and to answer complaints from guests, there is no evidence of what her duties as housekeeper consisted. Counsel for the hotel and the insurance carrier concede that, if the facts are as testified to by Mrs. Sprayberry, her injuries arose out of and in the course of her employment, and .she would be entitled to compensation. They insist that, in view of testimony by way of impeachment of Mrs. Sprayberry’s testimony, her testimony should be wholly disregarded. Eliminating Mrs. Sprayberry’s testimony from consideration, there remains, as respects the question at issue, only the testimony of Mr. Shotwell, the assistant manager of the hotel, and of the negro bell-boy. The testimony of these two witnesses, when considered without reference to the testimony of Mrs. Sprayberry, and therefore taken as uncontradicted and undisputed, makes the following case: Mrs. Sprayberry was the housekeeper of the hotel, living in the hotel and occupying a room there, and she, in the early part of the evening, between nine and eleven o’clock, was, in company with the wife of the manager of the hotel, and with two men who were guests of the hotel, in a guest-room of the hotel which was occupied by one of the men as a guest, and in another room of the hotel which was the room occupied by the other woman, that these were the only guests of the hotel that night; that while Mrs. Sprayberry was there, intoxicating liquors were being served, that it does not appear that Mrs. Sprayberry partook of any of the refreshments that were being served, but, if so, it does not appear that she became intoxicated or in any wise was under the influence of intoxicating liquor; that after remaining in these rooms for' about two hours, Mrs. Sprayberry accepted an invitation from one of the gentleman guests in her party to take a ride with' him, and
We assume that the burden rests upon Mrs. Sprayberry to show that the injury which she received by her fall froan the elevator arose out of aard iai the course of her eaaaployanent. Her duties as housekeeper are not defined except by her in her own testimony, where she stated that they consisted iia “looking after the guests and the rooans of the hotel, and in answering coanplaints from the guests,” but, froan the very nature of the employment aaid the fact that she lived in the hotel aaid occupied a room therein, her duties necessarily required her at some time, either in the day or at night, to go to the guest-rooms in the hotel. Guest-rooms in a hotel necessarily require, either directly, or indirectly through servants, the attention of the housekeeper. A housekeeper of a hotel, who lives in the building and who occupies a room thereiai, and whose duties require her to give attention to the rooms occupied by the guests, is, where it does not otherwise appear, presumably in the discharge of her duties as housekeeper while in a guest’s room or traveling in the hallways, or riding in an elevator which, in the discharge of her duties, she is permitted to use.
Whether, during the eaitire time Mrs. Sprayberry was in the rooms of the guests of the hotel, she had abandoned her employer’s business and had absolved herself from her duties as housekeeper, she certainly, after leaving the room and entering the halls of the hotel and the elevator on the return journey to her own room, had abandoned the enterprise in which she was engaged while in the guest-rooms. She must have either resumed her status as aai employee of the hotel on duty, or as one off duty but on the employer’s premises where her duties were to be performed, proceeding by the only available route to resume her duties. She undertook to
The fact that Mrs. Sprayberry, in returning to her room, may have had an intention, after arriving there, to get her coat and hat and leave the hotel for the purpose of going on an automobile ride and thereby disassociate herself from her duties as housekeeper of the hotel, certainly can not operate to deprive her, when in the
Eemove the alcohol from the bottles which were in the rooms where Mrs. Sprayberry visited, and thereby banish from this case the influence of the spirit of Bacchus which hovers over it, and we have, under the theory of the case contended for by the hotel company and the insurance carrier, the housekeeper leaving her room in the hotel while on duty as housekeeper, and proceeding to other guest-rooms in the hotel, one of which is the room of the wife of the manager of the hotel, and in these rooms attending, in company with the manager’s wife and two gentleman guests of the hotel, a social function where legitimate and non-intoxicating liquors are served. She goes to the rooms for the purpose of attending this function and remains there for about two hours in enjoyment of this entertainment, and then proceeds to return to her room by the elevator which in the performance of her duties as housekeeper she is permitted to use, and at the time intends ¡to make preparations, after arriving at her room, to leave the hotel in acceptance of an invitation for a ride with one of the gentlemen present in the rooms where she has been visiting. If these circumstances authorize a finding, that the housekeeper, by reason of her having 'attended as a guest the social functions in the rooms where she had been visiting, was not on duty as housekeeper when in the elevator returning to her room, and, therefore, that when injured from the operation of the elevator her injury did not arise out of and in the course of her employment as housekeeper and she was not entitled to compensation under the workmen’s' compen
The undisputed evidence demands the inference that the injuries which Mrs. Sprayberry received as the result of her fall from the elevator arose out of and in the course of her employment as housekeeper for the hotel. The undisputed evidence establishes the character of her injuries and the amount of salary and wages which she had earned. The industrial commission erred in holding that the injuries received by Mrs. Sprayberry did not arise out of and in the course of her employment, and the judge of the superior court erred in affirming tins judgment on appeal brought by the claimant.
In the foregoing Judge Bell concurs, but Presiding Judge Jenkins dissents. Speaking further and for myself only, without the concurrence of either Presiding Judge Jenkins or Judge Bell, I add the following by way of special concurrence in the judgment of reversal: There is nothing in the evidence which, in my opinion, is sufficient to authorize an inference that Mrs. Spray-berry, between the time of leaving her own room in the hotel and the time of attempting to return thereto in the elevator, was not engaged in and about the duties for which she was employed as housekeeper of the hotel. Although, as has been concluded by the majority of the court, notwithstanding Mrs. Sprayberry while in the guest-room of the hotel may have abandoned the duties for which she was employed as housekeeper of the hotel, she had nevertheless, while in the elevator returning to her own room, resumed her status as the housekeeper of the hotel, there yet might be some justification for the conclusion that her status as one who had abandoned her employment while in the guest-rooms of the hotel continued to the time of her accident in the elevator. It would therefore seem that the conclusion arrived at by the majority of the court, viz., that Mrs. Sprayberry at the time of the accident was engaged in and about the duties of her employment, would be fortified by the fact that while in the guest-rooms of the hotel she had not abandoned the duties for which she was employed.
There is no evidence to authorize the inference that Mrs. Spray-berry went to these rooms in the hotel for the purpose of attending this party or for the purpose of doing anything other than attending to her duties as housekeeper. She herself testified that her presence there was in response to a request from the guest inviting her to come to the room on a matter which was clearly within the scope of her duties as housekeeper. With her testimony eliminated from the case, the only inference from the evidence in this respect is solely that she was in the rooms. There is no evidence as to her motive or intention in going to these rooms. The only evidence which could- connect her in any way with the liquor being served in the rooms is the testimony of the bell-boy as to her presence there while liquor was being served, and the testimony of Mr. Shotwell that he smelled liquor on her person after she was injured, but did not smell any on her breath. Mrs. Sprayberry denied that she had drunk any liquor. Assuming-that she did and that the evidence was sufficient to authorize the industrial commission so to find, Mrs. Sprayberry’s conduct in going to the rooms for the purpose of indulging in intoxicating liquors, and in partaking of the liquors after arriving there, if she did either, would not by reason of the intoxicating character of the liquor operate to deprive her of her status, which she otherwise had, of the housekeeper of the hotel on duty at the time. The situation is the-same as if the liquor was non-intoxicating, or only food was served in the rooms. The test is whether her conduct was such as to deprive her while in the rooms of her status as housekeeper of the hotel. If going to the rooms for the purpose of drinking non-intoxicating liquors, or to obtain food, and there partaking thereof would not of itself alter her status as an employee of the hotel, certainly the fact that the liquor which she intended to consume on her arrival there and which she did consume while remaining there for that purpose was in .fact intoxicating would not alone alter the case and operate to deprive her of her status as the housekeeper of the hotel, and on duty as such while present in the rooms, or while leaving them to return to her own room in the hotel. If, while she was in the
In Salle v. N. Y., N. H. & H. R. R., 4 N. Y. St. Dep. Rep. 393, it was held that where a railroad trackman was run down by a train, while standing on the track taking a drink, with his back to the train, the accident arose out of the employment. In Carini v. Nickel Plate R. R. Co., 4 N. Y. St. Dep. Rep. 423, it was held that where a laborer on a railroad culvert was injured while crossing the track to go to dinner in a nearby bunk car belonging to the railroad company, the accident arose out of the employment. In Leonard v. Freemont Hotel, 2 Cal. I. A. C. Dee. 998, it was held that where a housekeeper of a hotel, in which she resided, whose services as such were available at all hours, was injured while going to another part of the hotel for the purpose of obtaining hot water for her personal use, the injury arose out of her employment. In North Carolina R. Co. v. Zachary, 232 U. S. 248 (34 Sup. Ct. 305, 58 L. ed. 591, Ann. Cas. 1914C, 159), it was held by the Supreme Court of the United States that “although absent temporarily from his train for a short time for a purpose not inconsistent with his duty to his employer, a railroad employe may still be on duty and engaged in interstate commerce within the meaning of the Employers’ Liability Act of 1908.” On page 260 the court says “it is said that because deceased had left his engine and was going to his boarding-house, he was engaged upon a personal errand, and not upon the carrier’s business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding-house as his destination, it nevertheless also appears that deceased was shortly to depart upon his run, having just prepared his engine for the purpose, and that he had not gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding-house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear ^hat the man was still ‘on duty’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine.” In Employers Liability Assurance Co. v. Henderson, 37 Ga. App. 238 (139 S. E. 688), it is held that “a city policeman, whose duty it is to patrol a beat and to perform police duties in the city,
Mrs. Sprayberry, while living in the hotel and while on dufy as housekeeper could, consistently with those duties and without depriving her of her status as housekeeper of the hotel, entertain guests of her own in her own room. The case therefore should be determined without reference to the fact that Mrs. Sprayberry was in a room in the hotel other than her own, but should be determined by the same standard respecting her conduct as would be applied to her if the entertainment which she was attending had been conducted in her own room. Applying this standard, Mrs. Sprayberry certainly was on duty as housekeeper of the hotel during the time she was in attendance on the party in the guest rooms of the hotel, and at the time of her injury when returning therefrom in the elevator.
Judgment reversed.
Dissenting Opinion
dissenting. The question in this case, as I see it, is whether the finding of the industrial commission that the injury to the claimant did not arise out of and in the course of her employment is absolutely without evidence to support it, for the reason that all of the undisputed testimony demands the inference that the injuries did in fact arise out of and during the course of her employment. It is well settled by any number of adjudications, both by the Supreme Court and by this court, that the findings of the industrial commission on questions of fact are absolutely binding upon both the superior court and this court, unless the finding is contrary to all of the evidence and without any evidence