Fidelity C. Co. of New York v. Barden , 79 Ga. App. 260 ( 1949 )

Where one goes upon the premises of an employer to which the public is invited, departs for a short distance, and is invited back by an employee for the purpose of negotiating the sale of a pistol, and while exhibiting the pistol to the employee it is accidentally discharged and kills the husband of the claimant, an employee not participating in the negotiations, the State Board of Workmen's Compensation is authorized to find that the death arose out of and in the course of employment, and the superior court did not err in affirming the award.

DECIDED MAY 13, 1949. Mrs. Herbert Barden filed her claim with the State Board of Workmen's Compensation against the Cotton Patch, the employer, and Fidelity Casualty Company of New York, the insurance carrier, seeking to recover for the death of her husband resulting from a pistol wound received on February 7, 1948, while in the employ of the Cotton Patch, a combination drive-in and restaurant located on North Avenue in Atlanta, Georgia. The only question before this court is whether the injury received by the deceased, Herbert Barden, arose "out of" his employment. It appeared from the evidence adduced upon the hearing before a single director that the deceased was employed as a "curb boy" or "car hop," whose duties consisted of serving customers in their cars on the defendant's premises. On Saturday night on the date of the injury, the deceased was in the performance of his duties, standing in line with the other curb boys awaiting his turn to serve prospective customers. Billy Marsh and one McClure, who was a former employee of said establishment, came on the premises and entered the restaurant. A short time later Marsh and McClure came out of the restaurant and Marsh was carrying a revolver in his hand. They left the premises of the defendant and started to cross North Avenue in front of said establishment, when F. C. Peacock, another curb boy and coemployee with the deceased, called out to Marsh and asked him if he wished to sell the gun. Both Marsh and McClure came back on the premises and began talking to Peacock, who was standing in line in rotation to serve car customers several boys ahead of the deceased. Marsh holding the pistol in his hand was demonstrating it to Peacock. The deceased was standing a full two yards behind Marsh, taking no part in the conversation. Marsh snapped the trigger twice at random, and on the third snap the gun fired, the bullet therefrom striking the deceased, who died shortly thereafter. Both Peacock and Buice, curb boys, who were present at the time of the accident testified that the deceased was an innocent bystander and was in the performance of his duties at the time of the injury. The evidence was undisputed that beer was sold by the establishment and consumed on the premises; that police officers, while off duty from the Atlanta Police Department, were employed by the defendant on Friday, Saturday, and Sunday nights to patrol the premises to prevent any disorderly conduct and to direct traffic; that fights and brawls among the customers did occur. One officer testified that in his two years of employment at the Cotton Patch he could remember making only four arrests, two for fighting and two for drunkenness.

The single director found in favor of the claimant. The board affirmed this award. The defendants appealed to the Superior Court of Fulton County, assigning as error the board's final award on the ground that the injury resulting in the death of the claimant's husband was not an injury which arose out of the employment, and therefore was not compensable. The superior court affirmed the finding of the board, and, the defendants excepted. We think that the board was authorized to find that the death of the employee resulted from an accident which arose in the course of and out of the employment. The employer's place of business was one to which the public was invited, whether to do business or not. The boy possessing the pistol, after having been upon the premises and having departed, was invited back by a coemployee of the deceased in connection with a transaction purely personal to himself. This fact, however, did not render the transaction one purely personal to the deceased. Such an invitation was certainly one to be anticipated. If the deceased had been killed by the carelessness of the fellow employee, we think there would be no doubt that the injury would be compensable. We have held that injuries to a nonparticipating employee caused by horse-play are compensable (American Mutual Liability Ins. Co. v. Benford, 77 Ga. App. 93,47 S.E.2d 673), and it would seem that similar conduct by the public which is indiscriminately invited upon the premises would also render injuries to non-participating employees compensable. Furthermore, it would seem that injuries from horse-play or negligence on the part of invitees would be of more frequent occurrence than horse-play or negligence by employees, due to their preponderance in number and difference in character and habits, etc. Some courts have gone so far as to hold that the fact that the employee is stationed at a particular place at the time of subjection to danger makes the injury sustained there compensable, and that is the principle in the case of Thornton v. Hartford Accident Indemnity Co., 198 Ga. 786 (32 S.E.2d, 816). Cases involving street dangers are based on the same principle. To be compensable, injuries do not have to arise from something peculiar to the employment. Otherwise hardly any injury due to the negligence of an employee or fellow employee or employer would be compensable. After the event, it is apparent to the rational mind that there is a casual connection between the conditions under which the employment was performed and the resulting injury. Whaley v. Patent Button Co., 184 Tenn. 700 (202 S.W.2d 649); Anderson v. Hotel Cataract, 70 S.D. 376 (17 N.W.2d, 913). See Entrocut v. Paramount Bakery Restaurant Co., 222 A.D. 844 (226 N. Y. Supp. 808), where it was decided, without opinion, that where a policeman waiting to be served in a restaurant was cleaning his revolver which went off accidentally and shot a waiter as he was entering from the kitchen, the accident was compensable. See also Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613 (11 S.W.2d 672), where it was held that an employee suffered a compensable injury when he, while at his post of duty, was struck by a missile from an air rifle in the hands of children, guests of the employer, who were impliedly invited to the premises and permitted to remain there.

The court did not err in affirming the award granting compensation.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.