Barge v. City of College Park

251 S.E.2d 580, 148 Ga. App. 480, 1978 Ga. App. LEXIS 3196
CourtCourt of Appeals of Georgia
DecidedNovember 28, 1978
Docket56153
StatusPublished
Cited by14 cases

This text of 251 S.E.2d 580 (Barge v. City of College Park) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barge v. City of College Park, 251 S.E.2d 580, 148 Ga. App. 480, 1978 Ga. App. LEXIS 3196 (Ga. Ct. App. 1978).

Opinions

McMurray, Judge.

Appeal in this case was taken from the judgment of the Fulton Superior Court affirming the State Board of Workers’ Compensation’s (changed from the State Board of Workmen’s Compensation by Ga. L. 1978, pp. 2220, 2221, effective July 1,1978) denial of a claim filed by Mrs. Alice P. Barge, as the widow of Eugene Barge and on behalf of Phillip A. Barge, the minor child of the deceased.

The central issue presented to the administrative law judge and to the full board, which upon a de novo consideration of all the evidence adopted his findings, was whether the death of Eugene Barge occurred out of and in the course of his employment.

The administrative law judge made the following findings of fact: "Officer Barge met an untimely death at 5:35 a.m. on November 7,1974, and that he was in uniform at the time of his death and that he had his revolver with him and was en route from his home driving in his private automobile to his place of employment where he was to report for duty as an Officer at 6:30 a.m. on the morning of November 7, 1974, and that at the time of his death, he was outside of the city limits of College Park.” (Emphasis supplied.) The administrative law judge and the full board further found "the deceased, Eugene W. Barge, left his residence on the morning of November 7,1974, and the evidence shows that most of the officers donned their uniforms before driving to work as the evidence shows that there were no private lockers or rooms other than a 15 ft. open area at the police station for changing clothes, but that it was not required that they drive to work in uniform as some of the officers did actually change into uniform from their civilian clothes at the police department in the City of College Park, however, the rules did require that when an officer was in uniform that he wear his .38 revolver. The undisputed evidence shows as a matter of fact that while in Fulton County, Georgia, Officer Barge stopped his 1965 Chevrolet apparently voluntarily and pulled to the side of the paved road and from the physical evidence and photographs introduced into evidence taken [481]*481shortly after the death of Officer Barge, he was shot six times, twice with a shotgun or shotguns and four times with a pistol in an apparent planned ambush type murder and the perpetrators of the same have not been determined for prosecution, but the officer was killed instantly.”

From the testimony of several officers involved in the investigation it was further found "that Officer Barge had been actively participating in the prosecution of a case against a John Paul Scott and that he had appeared before a Grand Jury and according to the uncontradicted testimony, was the sole witness upon which a conviction of Defendant Scott could be sustained, and that in fact, on two occasions bribe attempts had been made which were reported by Officer Barge to his superiors and according to the testimony of Mr. Daniels, Mr. Scott’s trial was to have been held sometime around November 27 or 28,1974, and this combined with the other admissible evidence shows that the untimely murder of Officer Barge on November 7, 1974, shows that his death arose out of the course of his employment, as apparently the ambush type killing was to silence him as a witness as it was an execution type slaying and was apparently well-planned.” After making the finding that the death arose out of the course of the deceased’s employment the administrative law judge, and ultimately the full board, proceeded to find that the evidence was insufficient to show that the death occurred "in the course of his employment.” For that reason the claim of the widow and minor child was denied.

In this court two principal bases of error are urged: (1) that it was error to reject certain opinion evidence offered to show the cause of the deceased’s death and that an in camera hearing should have been held with regard to the admissibility of such evidence; and (2) that the board’s finding was error as a matter of law. Held:

1. An accident "arises in the course of the employment” within the meaning of the compensation Act when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling his duties or engaged in doing something incidental thereto. Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga. App. 196 [482]*482(25 SE2d 74).

There was evidence offered to show that police officers employed by the City of College Park were on call twenty-four hours a day. Under the rule of continuous employment, a policeman, as an officer of the law, is on duty or on call, that is, subject to duty, for 24 hours out of every day. It is true that he may work only certain shifts of various hours but his whereabouts and the fact that he is subject to call is known to his superiors at all times at any hour or minute of the day. Therefore, he is no less an employee than a bus driver, a traveling salesman or a member of a construction crew working various and sundry hours away from home. See in this connection such cases as McDonald v. State Hwy. Dept., 127 Ga. App. 171 (192 SE2d 919); Wilson v. Ga. Power Co., 128 Ga. App. 352 (196 SE2d 693); General Fire &c. Co. v. Bellflower, 123 Ga. App. 864, 867 (3) (182 SE2d 678); New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (2), 688 (118 SE 786); and U. S. Fidelity &c. Co. v. Navarre, 147 Ga. App. 302.

The policeman involved in the case sub judice was, under the circumstances, certainly killed in line of duty, in uniform, armed, and prepared for action. Simply because he was en route to full and active service on the shift to which he was assigned does not prevent him from being in line of duty, prepared at all times to uphold the duties of an officer of the law, that is, "engaged in doing something incidental thereto,” and this is shown since he was in uniform, armed and prepared to carry out his duties. See New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (2), supra. Based upon such cases as McDonald v. State Hwy Dept., 127 Ga. App. 171, 173, supra, and like cases cited above, this policeman was doing something incidental to his employment. Although residing outside the city limits of College Park, he was killed or murdered by ambush under mysterious circumstances while outside the city limits on his way to perform his duty shift. Certainly all of the circumstances point out that he was killed in the line of duty. Definitely he was subject to continuous employment and this rule of law should be applied to his case. See Rules & Regulations of the College Park Police Department, and in particular Rules 7, 8,11, 12 and 35. None of these rules were in anywise shown to be [483]*483violated but they were being followed when the officer was killed.

He died under mysterious circumstances and suffered a violent death as a policeman, the circumstances of which can only be determined from the brief circumstantial evidence, and being continuously employed, uniformed and armed, on his way to his duty shift. See General Acc. Fire &c. Ins. Co. v. Sturgis, 136 Ga. App. 260 (221 SE2d 51); New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (1), 688-689, supra. To the rational mind, after consideration of all the circumstances, more than a mere causal connection was shown between the conditions under which this officer worked (police duty) and his resulting murder (injury resulting in death).

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Barge v. City of College Park
251 S.E.2d 580 (Court of Appeals of Georgia, 1978)

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Bluebook (online)
251 S.E.2d 580, 148 Ga. App. 480, 1978 Ga. App. LEXIS 3196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barge-v-city-of-college-park-gactapp-1978.