Bibb Manufacturing Co. v. Cowan
Bibb Manufacturing Co. v. Cowan
Opinion of the Court
(After stating the foregoing facts.) There was no competent -evidence to support the award of the full board and it was contrary to law. Consequently the superior court erred in affirming the judgment. “To authorize compensation under the workmen’s compensation act, it must appear that the employee’s injury (1) arose out of, and (2) in the course of, his employment; and (3) that the accident was within the purview
The testimony of the claimant himself does not show that his injury arose out of his employment and thus raise any conflict in the evidence. His relevant testimony, stated in narrative form, was as follows: “Morris is the one who shoved me down. He worked in the mill, Morris Hamlin, and he stepped back and let the lady get her check. When I first walked up to him, Mr. Stone told me to tell him to get back and let the lady get her check, and I just caught him by the arm and shook him a little bit and told him to get back and let Clara get her check, Clara Durand. She was a lady working in the mill, too, in the same room. Morris stepped up and got his, and that left me next, and I was fixing to get my stub and all of a sudden why he give me a shove and shoved me out. I was off balance at the time. I wasn’t expecting nothing. It wasn’t very heavy. I wasn’t
It is earnestly contended by the defendant in error that he was injured while engaged in an act of courtesy to a lady and should not be denied compensation. While the Workmen’s Compensation Act is to be liberally construed in order to accomplish its beneficent purposes, it has never been held that an employee may be compensated because of mere injury during the period of employment. It is required beyond dispute that to justify such an award the employee’s injury must have arisen out of his employment. In the present case it is not contended that the claimant, at the time of his injury, was acting under the direction-of any superior, but merely accepting the suggestion of a fellow employee that he induce another employee to defer to a lady ahead of him in line in the matter of obtaining a pay check. He readily admits that such an act was no part of his employment. Nevertheless, counsel for the claimant cite and strongly rely, as do two of the members of this court in dissenting from the opinion of the majority, upon Glens Falls Indemnity Co. v. Sockwell, 58 Ga. App. 111 (197 S. E. 647), and American Mut. Liability Ins. Co. v. Benford, 77 Ga. App. 93 (47 S. E. 2d, 673). In the Sockwell case the claimant had courteosuly stopped his laundry truck when flagged down by some boys and girls whose automobile had ceased to function. He had, however, completed his service to the fellow travelers and, “while standing
In the Benford case the claimant was not engaged in “horseplay,” but was injured while at work for his employer by one who was himself engaged in such sportive conduct and which was' in no wise produced by the claimant. Manifestly, these two cases do not hold that one injured as a result of his “horseplay” or sportive conduct, or even courtesy, when such injury does not arise out of his employment, is entitled to compensation. Courtesy is, of course, an admirable quality. But even the rendition of courtesy has its limitations. When one person has rightfully established himself in line to receive a pay check, as here, it is for him to say whether or not he will yield his place to another. He may not justly be dislodged from his position by an interloper, whether in malice or in play, who seeks to justify his interference by the empty excuse that he was-attempting to render an act of courtesy to a lady, and would have his resulting injury regarded as one arising out of his employment.
In the opinion of the majority of this court, the injury of the claimant did not arise out of his employment, but was the natural result of what might be charitably denominated as “horseplay” or sportive conduct on his part. See Georgia Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881).
Judgment reversed.
Dissenting Opinion
dissenting. This is a workmen’s compensation case, in which the claimant seeks to recover on account of a broken hip sustained when a fellow workman pushed him and caused him to fall while they were in a line formed to receive their pay. The single director found the accident not compensable because the injury resulted from horseplay initiated by the claimant. The full board, reviewing the findings of the single director, found that the accident was compensable, as the injuries arose out of and in the course of the employment of the claimant.
There is certainly evidence to support the finding of the single director. However, since the award was reviewed by the full board, the latter having been upheld by the superior court, which judgment is the subject of the exception here, it is necessary for this court to determine whether or not there is any evidence to support the finding of the full board that the injuries of the claimant arose out of and in the course of the employment. It is contended that the claimant’s injuries resulted from wilful misconduct, and also that they resulted from horseplay. The distinction between these defenses is this: wilful misconduct will bar recovery, even though the accident arises in the course of the employment, and even though it arises out of it, but wilful misconduct contemplates “the idea of premeditation, obstinacy and intentional wrongdoing.” Armour & Co. v. Little, 83 Ga. App. 762, 766 (64 S. E. 2d, 707); Code, §§ 114-102, 114-105. Horseplay contemplates a stepping aside from the employment in a spirit of fun and prankishness, and is therefore not something arising out of the employment; nevertheless, it will not bar recovery if it was not initiated or participated in by the claimant. American Mutual Liability Ins. Co. v. Benford, 77 Ga. App. 93 (47 S. E. 2d, 673). The full board found as a matter of fact that these contentions were invalid. There was evidence to support this finding. All the witnesses agreed that the injury was not intentional, nor the result of malice, ill-will, or mutual combat of any kind. The claimant’s testimony was to the effect
It is axiomatic that, where the award of the full board is supported by any evidence, it will not be disturbed by this court. The evidence here demands a finding that the injury did not result from wilful misconduct on the part of either party; and that most favorable to the claimant authorizes a finding that he was not and had not been motivated by the instincts of a prankster, but was merely carrying out the directions of a fellow employee in a spirit of helpfulness and courtesy when he caused Hamlin to step back. This being so, the board was authorized to find that any horseplay on Hamlin’s part in shoving him was not horseplay initiated or participated in by him, and would not bar his recovery.
We therefore believe that the judge of the superior court correctly affirmed the award of the full board, and dissent from the judgment of reversal.
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