Ladson Motor Company v. Croft

92 S.E.2d 103, 212 Ga. 275, 1956 Ga. LEXIS 337

• Court: Supreme Court of Georgia
• Decided: March 12, 1956
• Docket: 19237
• Status: Published

Opinions

Almand, Justice.

Ida Mae Croft, widow of J. D. Croft, filed her claim with the State Board of Workmen’s Compensation against Ladson Motor Company and its insurance carrier, to recover compensation on account of the death of her husband, an employee of the motor company. She was awarded compensation by the board. The appeal of the employer and insurance carrier was denied by the superior court, and the Court of Appeals affirmed this order. United States Fidelity &c. Co. v. Croft, 93 Ga. App. 114 (91 S. E. 2d 110). We granted the application of the employer and carrier for certiorari.

The sole question involved here is whether the undisputed evidence in 'the case authorized a finding that the death of the claimant’s husband arose out of and in the course of his employment, and was not because of the illegal act of a third person directed against the employee for reasons personal to such employee.

The undisputed evidence in this case discloses: The claimant’s husband was employed by the motor company as a night watchman, his duty being to patrol the premises of the employer and protect the building and automobiles stored adjacent thereto' against fire and theft. His hours of employment were from 7 o’clock p. m. to 7 o’clock a. m. Two or three nights before he was killed, Croft asked permission of his employer to make coffee on the inside of the building, which permission was refused, though he was told he could make coffee just outside the building.' Nothing was said about the employee going off the premises to get coffee, and no permission was given to him to go off the premises. A policeman testified that, at about 3:30 a. m. on May 14, 1954, he saw Croft sitting in a chair in a fruit stand operated by one Norman in a building 25 feet from the employer’s building “and even a little further than that from the cars of the employer”; and that, by walking to the front of the building in which Croft was seen, one could have a full view of the employer’s premises, or from the back door the building of the employer was visible except the far side where new cars were parked. The witness stated that Croft could see the premises if he were sitting in the back of the store. At the time the witness saw Croft, he was seated in a chair in the fruit stand, and 2 cups of coffee were on the table; that'the witness returned to the fruit stand about 5 o’clock a. m., where he found Croft and Norman dead, and coffee was still in the cups. Croft’s throat had been cut and his skull crushed and broken, and his body was in the chair in which he was sitting when last seen by the witness. Norman’s throat was cut and a bullet wound was in his head, and the back door of the building was still closed. None of the property of the employer had been disturbed.

Though a presumption may arise that an employee’s death arose out of and in the course of his employment where such employee dies on account of injuries received in a place where he may reasonably be expected to be in the performance of his duties (Standard Accident Ins. Ga. v. Kiker, 45 Ga. App. 706 (5), 165 S. E. 850), such presumption disappears upon the introduction of evidence to the contrary. Travelers Ins. Co. v. Curry, 76 Ga. App. 312 (45 S. E. 2d 453); Aetna Casualty &c. Co. v. Fulmer, 81 Ga. App. 97, 101 (57 S. E. 2d 865). No such presumption arises in this case, because the undisputed evidence shows that, at the time the employee met his death, he was not on the premises of his employer, nor in a place where he may reasonably have been expected to be in the performance of his duties. From the circumstantial evidence, the inference might reasonably be drawn that he was in the fruit stand solely for the purpose of drinking coffee. Nor are there any circumstances from which an inference might be drawn, either that he was performing any duty of a watchman on the premises of his employer, or that he was murdered because of anything that he was doing in behalf of his employer at the time. An inference can just as readily be drawn that he was murdered only for reasons personal to himself and to the assailant, as that he was murdered on account of his work as an employee. Facts which are consistent with either of two opposing theories prove nothing. So, where the evidence tends equally to sustain two inconsistent propositions, neither can be said to have been established by legitimate proof. Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 (1) (168 S. E. 112). Where a civil case rests on circumstantial evidence, the circumstances proved must tend in some proximate and reasonable degree to establish the conclusion claimed, and render less probable all inconsistent conclusions. So, where evidence is not more than a scintilla, if it is dependent entirely upon guess or speculation, it is insufficient to support a verdict. Bentley v. Southern Ry. Co., 52 Ga. App. 188, 190 (2) (182 S. E. 815). In Savannah River Lumber Co. v. Bush, 37 Ga. App. 539 (140 S. E. 899), a workmen’s compensation case, where the body of an employee was found dead off the premises of the employer, and there was no direct evidence as to the exact cause of his death, or what he was doing at the time thereof, it was held that there was not sufficient competent evidence to support an award of compensation. Judge Bell, speaking for the court, in words applicable here, said:

“Assuming that the decedent met his death by drowning, it is, under the evidence, the merest conjecture that he was thrown overboard by colliding with a tree, or that his death was in any way caused by his employment. For aught that appears, he may have been engaged in some temporary pursuit entirely disconnected with his employment, or his death may have heen caused by some agency unrelated to his employment and not within the purview of the statute. The obligation of the employer under the workmen’s compensation act is not that of an absolute insurer, and the burden is upon the claimant to prove a case to which the statute is applicable. Even though it may be true in this case that the decedent’s death did in fact arise out of his employment, there is no evidence of the fact, and liability can not be imposed merely because the actual circumstances are incapable of proof. It is more consistent with legal justice that a given case should fail for want of evidence than that it should succeed merely because the truth can not be shown.” Pp. 540, 541.

The burden was upon the claimant to show that the death of the deceased occurred at a place where he might reasonably have been in the performance of his duties, and while he was fulfilling his duties or was engaged in doing something incidental thereto, and that his employment was a contributing proximate cause. Hughes v. Hartford Indemnity Co., 76 Ga. App. 785 (1) (47 S. E. 2d 143). Even if it should be assumed in this case that the deceased was at a place where he reasonably might have been in the performance of his duties, and while doing something incidental to such performance, there is no evidence that his employment was a contributing proximate cause of his death. Whether his death resulted from some matter incidental to his employment, or for reasons personal, or by reason of revenge, is wholly a matter of speculation and conjecture.

We are of the opinion that the evidence is wholly insufficient to show that the employee’s death was by reason of an accident arising out of his employment. Accordingly, it was error for the Court of Appeals to sustain the judgment awarding compensation.

Judgment reversed.

All the Justices concur, except Head and Mobley, JJ., who dissent, and Wyatt, P. J., not participating.