Travelers Insurance v. Bailey

47 S.E.2d 103 | Ga. Ct. App. | 1948

1. While a witness may be impeached by the introduction of contradictory statements previously made by him as to matters relevant to his testimony and to the case (see Code § 38-1803), and when such contradictory statements are established as having been made by such witness, it then becomes a question for the jury as to whether or not such witness has been successfully impeached so as to authorize the jury to disregard his testimony (see Huff v. State, 104 Ga. 521 (2), 30 S.E. 808), if such contradiction is not on matters relevant to his testimony and to the case, or if, indeed, such prior statement fails to amount to a contradiction at all, the question of whether or not he has been successfully impeached is not then one of fact for the jury, but one of law for the court. In such latter case the fact-finding tribunal cannot disregard his testimony (see Hudgins v. Bloodworth Co., 109 Ga. 197 (1), 34 S.E. 364), and when facts sufficient to support an issue have thus been testified to, such issue has prima facie been established. See Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12) (118 S.E. 435).

2. There is no requirement in our law that the employee at the time of the injury must have no objective other than the service of the employer. It is sufficient if the injury is occasioned by an accident arising out of and in the course of the employment. Accordingly, notwithstanding the mere fact that the mission may have two objectives, service as intended by the contract of employment, and also some personal objective of the employee, an injury sustained by an employee under such circumstances is an injury arising out of and in the course of the employment and is compensable. See Hartford Accident Indemnity Corp. v. Welker, 75 Ga. App. 594 (44 S.E.2d 160).

3. When, upon consideration of all the evidence, it appears that there is no controversy therein on the material issues essential to establish the right of the claimant to recover, and no implications and inferences which can logically and properly arise from the evidence against such recovery, a finding of fact by the Board of Workmen's Compensation for the claimant is demanded as a matter of law.

DECIDED FEBRUARY 18, 1948. REHEARING DENIED MARCH 26, 1948. Elmer Bailey filed a claim under the Workmen's Compensation Law against Harmony Grove Mills Inc. and its insurance carrier, Travelers Insurance Company, in which he contended substantially that on November 13, 1945, he was an employee of Harmony Grove Mills Inc.; that his average weekly wage was $36.23; and that on said date he received a severe injury growing out of and in the course of his employment. It was agreed that he was such employee, and that his average weekly wages were as hereinbefore set out. The evidence is undisputed that the claimant was a carpenter; that he received most of his instructions from J. E. Farmer, master mechanic; that he worked over the entire property on which the mill is located; that on November 13, 1945, he had returned from lunch, and the first task to which he was assigned was that of putting glass in some swinging scales located in the card room of the mill on the second floor; that this task was performed by J. E. Farmer, G. C. Hood, a fellow employee, and the claimant; that before the job was completed Farmer left the claimant and Hood to finish the job and he descended the stairs; that the job was finished a short time before 2 o'clock in the afternoon; that the shifts change at the plant at 2 o'clock in the afternoon; that the claimant's wife also works at the mill and usually comes to the plant a few minutes before 2 o'clock in order to begin work at that hour; that he frequently meets his wife for a short greeting outside the mill at this time; that the claimant upon completing the job on the scale upstairs, also descended the stairs and saw the driver of an express truck at the foot of the stairs; that he inquired of the driver about picking up some express at his home; that he then walked outside the mill and started to pass between the express truck which was parked outside and the building wall; that as he was passing behind the truck the same rolled backward a distance of 3 or 4 feet and pinned him between the truck and the building wall, severely injuring him. The claimant was immediately taken to the hospital, and after he had been there for two days a representative of the employer's insurance carrier called upon him and procured from him a statement, which he signed by his mark because his right arm was in a cast and he could not write, as follows. "Commerce, Georgia, November 15, 1945. I am S. Elmer Bailey (w) living at 25 Hickory Street, Commerce, I am a carpenter at Harmony Grove Mills, where I have been working for more than fifteen years. On Tuesday, Nov. 13, 1945, I was working upstairs. I had put a glass in some swinging scales and had walked back down the stairs toward the shop in the rear of the building on the ground level. The stairs came down by the doors in the tower which is the main entrance to the mill building. This was about two o'clock at shift-change time. When I got down to the foot of the stairs I spoke to the express truck driver whose truck was parked just outside the door. I asked him about picking up some express at my home which he said he had already picked up. I then started outside the mill, I don't remember what I wanted to go outside for, but I had to pass behind the truck whose back end was about three or four feet from the door. Just as I got behind the truck, it suddenly came back and pinned me between the truck and the building wall. I fell forward when the truck pulled away from me. I didn't know that the truck driver was in the truck, and I am not sure why I went outside the mill. It is nearer to the shop through the mill and ordinarily I would have gone through the mill but I went outside for something. I may have started out to the filling station out by the mill fence to get a coca-cola, but I can't remember why I went outside. I had already finished talking to the truck driver before going outside the mill door. There were a number of people going in and out the door at the time, behind the truck. Mr. Cleve Hood and Mr. Farmer were upstairs working with me and came downstairs with me. Mr. Hood helped pick me up, but I don't know where Mr. Farmer went. I still had some tools with me. I had not carried them back to the shop when the accident happened.

"This three page statement was read to S. Elmer Bailey, who says it is true and subscribed his mark since his right arm is in a cast due to fracture. (S.) Elmer (his mark x) Bailey. Witness: Robert D. Engelhart, Allen E. Bailey, Pearl Bailey, Lilla Bailey."

On November 28, 1945, while the claimant was confined in Piedmont Hospital in Atlanta, he signed another statement as follows: "Atlanta, Georgia. Nov. 28, 1945. I, S. Elmer Bailey of 25 Hickory Street, Commerce, Georgia, wish to supplement a statement given the Travelers Insurance Company's representative, Mr. Robert D. Engelhart on Nov. 15, 1945, to say that at the time I was injured on Nov. 13, 1945, at the Harmony Grove Mills, in Commerce, Georgia, I was going out the front entrance door to meet my wife whom I was expecting about that time. My wife works at the mill, Harmony Grove Mills, with whom I am employed and was at the time I was injured Nov. 13, 1945. I was supposed to have been on the mob [job] at the time the Express Company truck rolled back and pinned me between the truck and the mill building. A co-worker, Cleveland Hood and I had just finished a job on the second floor and had come down the stairs to return to the shop located on the first floor on the west side of the building. The accident in which I was injured occurred shortly before 2:00 p. m. The reason I know that it did is there were employees coming in to begin work at 2 p. m., the time the second shift begins work. This was the shift my wife worked and I knew she would be coming in. I was planning to meet her on Nov. 13, 1945, just to see how she was. I would meet her on the mill premises somewhere every day as she came in to begin work. My present wife, referred to above, is my second. We have been married about two years. My first wife died about three years ago.

"The foregoing one and a fraction page statement supplementing the statement given on Nov. 15, 1945, has been read aloud to the giver, Mr. S. Elmer Bailey, and he states that it contained the true facts concerning the accident in which he was injured on Nov. 13, 1945. Due to Mr. Bailey's arm being in a cast (his right arm), he has subscribed his mark instead of his signature (S.) S. Elmer (his x mark) Bailey. Witness: M. H. Hammock Mamie Joe Richards. My commission expires March 22, 1946. (Seal) Nov. 28, 1945."

The claimant testified on the hearing held March 4, 1946, that he went out the front entrance looking for Mr. Farmer to see what he wanted done next, also to see about fixing some windows and to meet his wife whom he expected about that time.

The hearing director made an award in favor of the employer denying the claim. This decision was appealed to the Superior Court of Jackson County, and the judge entered a judgment reversing the award of the hearing director, which judgment is assigned as error. 1. If the statements which were taken from the claimant at the hospital, the first two days after he was injured, and the second at the Piedmont Hospital in Atlanta some two weeks after he was injured, were introduced for the purpose of impeaching the testimony of the claimant, such statements, as a matter of law, cannot have this effect. Section 38-1803 of the Code provides in part as follows: "A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case." An examination of the statements introduced in evidence in this case as having been made by the claimant previous to the time he testified in his own behalf at the hearing discloses in substance that, as to the first statement, he said that he did not remember why he walked out of the building on the occasion of his injury; he said that it may have been to go across to the filling station out by the mill fence to get a coca-cola. In the statement he later made at the Piedmont Hospital in Atlanta he said that he was planning to meet his wife as she was coming to work at the same mill at 2 p. m., and that he went outside the mill at the time and on the occasion of his injury to meet his wife. At the hearing, the claimant testified that, having finished the job he was on and being ready to begin another, he went outside the mill at the time and on the occasion of his injury looking for Mr. Farmer, the master mechanic of the employer, who usually gave him his instructions, to see what was the next job to be required of him; that he also went outside to see about some windows in the winder room; that the most direct route to it would have been through the mill and not outside as he went; and that he also went outside on the occasion in question to see his wife. An examination of the prior statements and of his testimony discloses that there is no conflict about any matter relevant to his testimony and to the case. It is true that in his second statement he said that he was going outside to meet his wife, which was in keeping with his usual practice since both of them worked at the mill and she came on at the 2 o'clock shift. The record is silent as to when he gets off, but it was probably not at 2 o'clock. Being a general repair man he probably did not work in accordance with the shift hours. However, he did not say in this statement that that was his sole mission. In his subsequent testimony he gave that as one of his missions. His other mission was in accordance with his duty in the service of his employer as contemplated by the contract of employment. Therefore it necessarily follows that this statement does not contradict his subsequent testimony as to any matters relevant to his testimony and to the case. In his first statement, taken only two days after his injury and while in the hospital at Commerce, he said that he did not remember why he went outside. Being at that time, no doubt, in great pain, it is perfectly reasonable and logical that he did not remember. That he did not remember then and did remember at the time of his testimony is no contradiction of his testimony. While a witness may be impeached by the introduction of contradictory statements previously made by him as to matters relevant to his testimony and to the case (see Code § 38-1803), and when such contradictory statements are established as having been made by such witness, it then becomes a question for the jury as to whether or not such witness has been successfully impeached so as to authorize the jury to disregard his testimony (see Huff v. State, 104 Ga. 521 (2)), if such contradiction is not on matters relevant to his testimony and to the case, or if, indeed, such prior statement fails to amount to a contradiction at all, the question of whether or not he has been successfully impeached is not then one of fact for the jury, but one of law for the court. In such latter case, the fact-finding tribunal cannot disregard his testimony (see Hudgins v. Bloodworth Co., 109 Ga. 197 (1)); and when facts sufficient to support an issue have thus been testified to, such issue has prima facie been established. See Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12). Insofar as the prior statements may be relied upon as probative evidence, as distinguished from their admission for impeachment purposes, the part of the second statement of the claimant, to the effect that he went outside the mill to meet his wife, fails to amount to such admission against interest as to bar recovery, for the reasons set forth in the second headnote and that division of this decision.

2. The testimony of the claimant at the hearing revealed that, in going outside the mill building at the time and on the occasion of his injury, he had two objectives: one was the personal objective of meeting his wife; the other was service as intended by the contract of employment. There is no requirement in our law that the employee at the time of the injury must have no objective other than the service of the employer. It is sufficient if the injury is occasioned by an accident arising out of and in the course of the employment. Accordingly, notwithstanding the mere fact that the mission may have two objectives, service as intended by the contract of employment, and also some personal objective of the employee, an injury sustained by an employee under such circumstances is an injury arising out of and in the course of the employment and is compensable. See Hartford Accident Indemnity Corp. v.Welker, 75 Ga. App. 594.

3. Only such sufficient portion of the evidence shown by the record in this case is set forth in the statement of facts herein as is material to a clear understanding of the case and particularly that part about which contentions are made. We quote from the judgment of the trial court as follows: "It is thereupon considered, ordered and adjudged that the above-stated case be and the same is recommitted to the Workmen's Compensation Board of this State with directions to determine from the evidence before it in the record already made the amount of the award to be made to said claimant." The evidence in the record is sufficient for these directions to be carried out by the board. When, upon consideration of all the evidence, it appears that there is no controversy therein on the material issues essential to establish the right of the claimant to recover, and no implications and inferences which can logically and properly arise from the evidence against such recovery, a finding of fact by the board for the claimant is demanded as a matter of law.

The evidence in this case demands as a matter of law an award in favor of the claimant, and the judgment of the trial court so holding is without error.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.