United States Fidelity & Guaranty Co. v. Skinner , 59 Ga. App. 82 ( 1938 )

Sutton, J.

W. B. Skinner, an employee of the Southern Fertilizer & Chemical Company, received an injury in an automobile accident on June 19, 1937, from which he died three days later. His widow filed a claim for compensation with the Industrial Board, and an award was rendered in her favor by the single director, which, on appeal, was approved by the full board and ivas affirmed by the judge of the superior court. The employer and the insurance carrier excepted. The question presented for determination is whether the accident, which resulted in Skinner’s death, arose out of and in the course of his emplojcment.

The record shows that W. B. Skinner was employed by the Southern Fertilizer & Chemical Company as a field representative or traveling salesman, and was paid a salary of $150 per month and traveling expenses, including meals when away from home; he lived in Macon and ivas not allowed expenses while at home; he was furnished an automobile, and the expenses of its operation were paid by his employer, and he ivas allowed to use the car for personal purposes if he desired; traveling salesmen of the company had a regular territory, and Skinner’s duties were to solicit sales for- and sell the product of his employer and to make collections; when and hoAY the salesmen worked was not a matter of concern to the company, if they performed their work AA^ell—what Avas required of them was results; C. C. Maile of Atlanta was also employed by this company as a traveling salesman, and it Avas his understanding that he had supervision over Skinner—their duties and the nature of their work were the same and they had the same kind of positions; the headquarters of the fertilizer company were in Savannah, and W. D. Cook who lived there was the vice-president of the company and in charge of the sales operations thereof, and was the superior officer of Maile and Skinner; the traveling salesmen were sometimes called to Savannah over the week-end for business conferences with Mr. Cook, the vice-president, which would sometimes take place on Sundays, depending on the convenience of Mr. Cook; just prior to Saturday, June 19, 1937, Cook communicated with Maile in Atlanta to contact Skinner and for them to go to Savannah that week-end for a conference with him, and in compliance therewith Maile and Skinner went to Savannah on Saturday, June 19, 1937, leaving Macon about 10 o’clock a. m., and, after attending to business for the company on the way down, arrived in Savannah about 3 p. m.; they registered at the Savannah Hotel, took a bath and cleaned up; they had not eaten lunch on the way down, but had decided to wait and eat a sea-food dinner after arriving at Savannah, as they liked to do on their visits there; Tybee Beach is a seaside resort on the Atlantic Ocean, eighteen miles east of Savannah, and is reached by a highway, and on this road is a place called Parris’s, where Maile and Skinner intended to eat'dinner, but they changed their minds and decided to go on to Tybee to eat a sea-food dinner and see the ocean, and on "the way there, at a point some seven miles from Savannah, while traveling at a rate of speed of fifty-five miles per hour in the automobile furnished by the fertilizer company to Maile, a tire blew out, and the ear, which was being operated by Maile, turned over, causing injuries to Skinner from which he died three days later; there was no business of the company which required Maile and Skinner to go to Tybee at this time; the accident happened between 4:30 and 6 :30 Saturday afternoon, and they had not notified Mr. Cook of their arrival, but intended to do so after dinner so that they might have the conference with him and get back to work in their respective territory on Monday; the company made no effort to tell them where to get their meals, and had no objection to their eating at Tybee; prior to this time, on some occasions, they had eaten meals and entertained customers at Tybee.

The following opinion represents the views of the majority of the court, from which I dissent: The question presented is a most difficult one. There are no precedents from Georgia courts, and those from foreign jurisdictions are conflicting. The foreign cases contrary to what is herein held are based on the idea that a traveling salesman is not in continuous employment. Our view is that a traveling salesman, away from home or headquarters, is in continuous employment, and that an accident to him arises in the course of his employment “if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.” Christensen v. Hauff Bros., 193 Iowa, 1084 (188 N. W. 851, 853); Walker v. Speeder Machinery Cor., 213 Iowa, 1134 (240 N. W. 725), and cases cited from various jurisdictions. The case of Johnson v. Smith, 263 N. Y. 10 (188 N. E. 140), holding to the contrary, is not a unanimous decision. Three of the seven judges dissented. A traveling salesman is carried away from home by his contract of employment. When he completes his day’s work he is still away for that reason. He is where he can not pursue his individual interests or pastimes. His duties draw around him a large circle, and the fact that after business hours he occupies a smaller circle, one in which he is not actually transacting business, does not automatically withdraw him from the larger circle of continuous employment. What is expected of a traveling salesman away from headquarters, before and after business hours? Is he to sit in a hotel room and read a magazine or newspaper? Is he to metamorphose himself from a natural human being into a creature apart from a world of reality and normality until work time comes again? May he walk down the street for exercise, go to church, a picture show, visit a friend, go swimming, or play golf? Whether the conduct of a salesman takes him. without the larger circle depends on the circumstances of the case. In this case salesmen were permitted to entertain customers at Tybee. The evidence shows that the employer had no objection to the employees lunching there, and that his meals eaten on the occasion of this visit to Savannah were paid for by it. Even if this had not been so, without a specific contract to the contrary, we can' not say that the finding was unauthorized to the effect that the desire to go to Tybee for a fish dinner was not inconsistent with or repugnant to the relationship, that it did not increase the employer’s risk, and that it was an act such as an employee might reasonably do within a time when he was employed, and that Tybee was a place where the employee might reasonably be during that time. Cases involving employees, who are not traveling salesmen, injured during lunch hour or similar periods are not applicable to this case, because they are not in continuous employment. We think that under the circumstances the Industrial Board was authorized to find that the employee suffered an injury which arose out of and in the course of his employment. There was no error in affirming the award.

Judgment affirmed.

Stephens, P. J., and Felton, J., concur. Sutton, J., dissents.