Hartford Accident C. Co. v. Welker , 75 Ga. App. 594 ( 1947 )

1. An agreement by an employee that any and all claims for injuries arising out of and in the course of the employment of the employee shall be governed by the Workmen's Compensation laws of the State of Illinois, where the employee has never been located in the State of Illinois as an employee, and where his territory as an employee did not include any part of the State of Illinois, but in the main part his place of employment is located within the State of Georgia, and where an injury is received by the employee in the State of Georgia in the course of his employment, he has the right to proceed in the State of Georgia to recover for such injury; and such agreement will not operate to divest the Georgia Workmen's Compensation Board of jurisdiction to award compensation for an injury occurring under such circumstances.

2. (a) In order for an injury to be compensable under the terms of the Workmen's Compensation Act, it must have been occasioned by an accident arising out of and in the course of the employment. An accident arises in the course of the employment, within the meaning of the act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. An accident arises out of the employment, when it arises because of it, as when the employment is a contributing proximate cause. Code, § 114-102.

(b) There is no requirement in our law that the employee at the time of the injury must have no objective other than the business 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 had two objectives, business as intended by the contract of employment and also the personal pleasure of the employee, where there is evidence that the trip had a direct, immediate, and substantial business objective, and where there had been no deviation from the course which the employee would have followed had the trip been entirely upon the business of the employer, and no real deviation therefrom was intended before the full duty to the employer was to have been performed, any injury sustained by an employee while en route to the place where he was to perform duties of his employment is an injury arising out of and in the course of the employment and is compensable under the Workmen's Compensation Act, even though the employee on the same trip intended to engage in a fishing trip for his own pleasure after he had fully performed his duty to his employer of the business objective of the trip.

DECIDED SEPTEMBER 4, 1947. The evidence shows that E. W. Welker was employed by the A. E. Staley Manufacturing Company as Southeastern Sales Manager. He had been located in Atlanta, Georgia, since 1932. Since 1932, his employment has been confined to the States of Alabama, Tennessee, Georgia, Florida, and a part of Kentucky. He had no duties whatever to perform in the State of Illinois. His general duties were to supervise the sale of his employer's products in these States, hire and fire salesmen, and any other duties incidental thereto. He had complete charge of the territory and could go and come whenever and however he chose without direction from the company. Sometime prior to July 8, 1945, Welker had plans for a fishing trip to Weelaka, Florida, with some friends. The date of the fishing trip was tentatively set for July 9, 1945. He secured permission from his company to take a week's vacation beginning July 9, 1945. After the fishing trip had been agreed upon and the approval given by his company for him to take a week's vacation beginning July 9, 1945, he continued performing the duties imposed upon him by virtue of his position with the company.

In June, 1945, Welker was informed by salesman Robertson whose headquarters were at Winterhaven, Florida, that he was going to leave the company effective July 1, 1945. Welker notified his home office to take Robertson off the payroll, and was advised by the home office to proceed to Winterhaven for the purpose of checking Robertson out and taking charge of the company property, which consisted of an automobile, accounts, and other property. Welker was unable to secure transportation to Winterhaven, Florida, and worked out an agreement with a Mr. Cucich to use his automobile in going to Winterhaven. It was agreed between the parties that Welker would use the Cucich automobile in going to Winterhaven, and by doing so would let the rest of the party off at Weelaka, Florida, and continue on to Winterhaven for the purpose of checking Robertson out. Pursuant to this agreement to use the Cucich car, they left Atlanta, Georgia, Sunday morning, July 8, 1945, and while traveling the most direct route to Winterhaven, Florida, and when they were approximately sixty miles out of Atlanta, the accident occurred. Welker had with him at the time the accident happened all of the company records relating to Robertson in Winterhaven. All the evidence shows that Welker's destination was Winterhaven, his mission being that of representing the company in checking Robertson out. The evidence without conflict shows that Welker was to go from Atlanta to Winterhaven on business of his employer to check Robertson out before he would enter upon the fishing trip at Weelaka, Florida, and that the accident occurred while he was en route from Atlanta, Georgia, to Winterhaven, Florida, on business of his employer and was carrying out the duties of his employment at the time. 1. The evidence shows that the Industrial Board of Georgia had jurisdiction of this case. The A. E. Staley Company has from twenty to twenty-five employees in the State of Georgia. Mr. Welker had never been employed by the company in the State of Illinois; for the last fifteen years he had been employed in Georgia, with his headquarters in Atlanta, Georgia, with supervision over the States of Georgia, Florida, Alabama, Tennessee, and a part of Kentucky, but had no duties to perform for the company or any employment with the company in the State of Illinois. An agreement was signed by Welker in Georgia and it was intended to relate to employment solely or in the main in Georgia and entirely outside of the State of Illinois. It does not show any proper execution by the A. E. Staley Manufacturing Company so as to be binding upon them, if such an agreement could be legally executed so as to deprive the Georgia board of jurisdiction in a case such as this. There is no proof in the record that at the time the alleged agreement was signed that the statutes of Illinois relating to such claims as this gave the employee any protection whatever. The employee had never lived in Illinois or been located there as an employee, and his territory as an employee did not include any part of the State of Illinois. The agreement was signed by the employee in the State of Georgia.

If this agreement was executed as claimed, but if the State of Illinois did not at that time provide protection similar in principle to that provided in Georgia (and there is no evidence in the record as to what protection is afforded an employee in such cases as this under the Illinois law), our courts will not uphold such an agreement. Nor will the court uphold such an agreement if it was intended to relate to employment wholly or in the main in Georgia and entirely outside of Illinois. The agreement contemplated services exclusively outside of Illinois. The agreement must be construed in the light of the facts before the court and can not serve to divest the Georgia board of jurisdiction in this matter.

The Georgia law is far-reaching and liberal in its coverage and protection of employees. It is strict, definite, and exacting in its provisions relating to its rejection. The provisions of the Workmen's Compensation Act of Georgia prevail over all agreements not clearly in accord therewith. This is true even in a case of agreement between the employer and employee approved by the board. Not only the employer and employee have a real interest in the principles and policies underlying this legislation, but it is affected with the public interest. "Every contract of service between any employer and employee covered by this Title, written, oral, or implied, shall be presumed to have been made subject to the provisions of this Title, unless either party shall give notice in the manner provided in § 114-202 and § 114-203 to the other party to such contract, that the provisions of this Title, other than § 114-204, § 114-205, and § 114-206 are not intended to apply." Code, § 114-110. "No contract or agreement, written, oral or implied, nor any rule, regulation or other device shall in any manner operate to relieve any employer in whole or in part from any obligation created by this Title, except as herein otherwise expressly provided." § 114-111. In Employers LiabilityAssurance Corp. v. Hunter, 184 Ga. 196 (190 S.E. 598), it was held: "Where an employer, a resident of Florida, which is engaged in the paving construction business, and for several years has done business in Georgia under and subject to the Workmen's Compensation Act of this State, and has carried compensation insurance thereunder, enters into a contract in this State with a resident of this State for services not expressly exclusively without this State, and such employee sustains an accidental injury while within the State and engaged in the usual course of trade, business, occupation, or profession of the employer, or incidental thereto, and where at the time of the injury the employer has in force a policy of compensation insurance taken out for the purpose of insuring the employer against liability under the act, and where after the accident the employer engages in business in this State under the compensation act, and while thus engaged is insured under the above policy, such employer and employee are subject to the provisions of the Georgia Workmen's Compensation Act, in the absence of any showing that either or both of them have given the notice required to exempt them from the operation of the act (Ga. L. 1920, p. 171, sec. 5; 1931, pp. 7, 43; Code, § 114-201), even though, at the time of the contract of employment, the injury, and the hearing before the Department of Industrial Relations, the employer was not actually engaged in business in this State with ten or more employees in its service, and even though the employer at such times as it was actively engaged in business in this State had less than ten employees regularly in service in the same business in this State." "In McKesson-Fuller-Morrison Co. v. Industrial Commission [212 Wis. 506] (1933), 250 N.W. 396, it was held that, where an employer under the compensation act engages a person to perform services in Wisconsin under a contract of hire, express or implied, no matter where or when such contract was made, the employee is entitled to the benefits of the Wisconsin act, and this even though he was injured while outside that State rendering services incidental to his employment within that State. The court said that the place where the contract was made was not controlling; and that whether the employee was a resident of the State was not material, but that the controlling and decisive factor was whether he had a status as an employee within the State.

"And it was held that a traveling salesman whose contract of employment was made in Illinois, but whose sales territory was in Wisconsin, and who was injured in Illinois while returning to his territory from the employer's branch, to which he had been summoned, was an employee within the meaning of the Wisconsin Act, and that an award under that act was proper." 90 A.L.R. 120 (note). See also, Slaten v. Travelers Ins. Co., 197 Ga. 1 (28 S.E.2d 280); Slaten v. Travelers Ins. Co., 197 Ga. 856 (30 S.E.2d 822); Murphey v. American Mutual LiabilityIns. Co., 70 Ga. App. 598 (28 S.E.2d 876); Globe IndemnityCo. v. Lankford, 35 Ga. App. 599 (134 S.E. 357); UnitedStates Casualty Co. v. Smith, 34 Ga. App. 363 (129 S.E. 880); Metropolitan Casualty Ins. Co. v. Huhn, 165 Ga. 667 (142 S.E. 121); 71 C. J. 311; 1 Schneider's Workmen's Compensation Law, pp. 411-433; Carl Hagenbeck Great Wallace Show Co. v. Randall, 75 Ind. App. 417 (1920) (126 N.E. 504);Employers Liability Assurance Corp. v. Hunter, 184 Ga. 196 (190 S.E. 598); American Law Reports annotations (particularly under "Conflict of Laws"), appearing in 3 A.L.R. 1351, 18 A.L.R. 292, 28 A.L.R. 1345, 59 A.L.R. 735, 82 A.L.R. 709; 126 A.L.R. 876.)

2. Under the facts as above set out, the Compensation Board was amply authorized to find that the injury to Mr. Welker was an injury arising out of and in the course of his employment. "An employee whose work requires that he travel and spend nights away from home and at hotels or lodging places, is protected, by the provisions of the Workmen's Compensation Law from exposure to theperils of the highway and the hazards of hotels which occur in the normal, usual, and accustomed manner, and which are incident to such exposure. An injury so incurred may be said to have a causal connection with the employment and therefore to have arisen out of the employment." Railway Express Agency v.Shuttleworth, 61 Ga. App. 644 (1b) (7 S.E.2d 195);Continental Casualty Co. v. Weems, 60 Ga. App. 410 (3 S.E.2d, 846).

Under the facts of this case, the Industrial Board of Georgia had jurisdiction, and under the evidence was amply authorize to make the award for compensation and the superior court did not err in affirming the award of the Industrial Board.

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