Pacific Indemnity Insurance Company v. Eberhardt., 107 Ga. App. 391, 130 S.E.2d 136 (1963)

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Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, Meade Burns, Jr., contra.Powell, Goldstein, Frazer & Murphy, Earl J. Van Gerpen, Frank Love, Jr., for plaintiff in error.

1. The evidence before the State Board of Workmen's Compensation did not demand a finding that the death of the claimant's decedent did not occur out of and in the course of his employment.

2. The record in this case discloses, however, that the board has failed to consider evidence which would have authorized a finding that the injuries sustained by the claimant's decedent were proximately caused by his violation of a penal statute of this State so as to bar the recovery of compensation under the provisions of Code 114-105, and the case must therefore be remanded to the board for further findings.

The claimant's husband received severe injuries which aggravated a pre-existing diseased condition and resulted in his death on November 1, 1961.

The deputy director found for the claimant and awarded compensation and said award was affirmed by the full board. The superior court on appeal affirmed the full board's award and the exception is to that judgment.

The defendants' appeal in this case is predicated upon two contentions: (1) that the claimant's husband's death did not occur out of and in the course of his employment; and (2) that the claim is barred by the provisions of Code 114-105, since the evidence demanded the finding that the death of the claimant's husband was caused by intoxication and by his wilful failure to perform a duty required by a statute.

1. Under the decision of this court in Federal Ins. Co. v. Coram, 95 Ga. App. 622 (98 SE2d 214) there is no merit in the defendants' contention that a finding was demanded that the death of the claimant's husband did not occur out of and in the course of his employment. In that case it was held that, where parking facilities are furnished by an employer for the use of his employees, going to and from said parking facilities by the employees in order to reach their immediate working area is a necessary incident to their employment and where an employee is injured while proceeding to or from said parking area to his immediate working area, a finding is authorized that such injury arose out of and in the course of his employment. The evidence in this case which disclosed that the claimant's husband's accident occurred shortly before eight o'clock on the morning of September 16, 1961, while he was proceeding from parking facilities furnished by his employer to the immediate working area of his employment where he was to punch a time clock at eight o'clock, and begin the performance of the duties of his employment, was sufficient to authorize a finding that said accident occurred out of and in the course of his employment. The fact that the parking facilities provided by the employer in this case were not located on the immediate premises of the employer but were located on a parking lot separated from the employer's business by a public street does not distinguish this case from the Coram case. See Larson's Workmen's Compensation Law, 15.14, p. 199, and cases cited therein.

2. Under the mandate of Code 114-105, workmen's compensation shall not be allowed for an injury or death due to the employee's wilful misconduct or due to intoxication or wilful failure or refusal by the employee to perform a duty required by statute. In construing this statute it has been held that as a general rule the mere violation of instructions, orders, rules, ordinances, and statutes and the doing of hazardous acts where the danger is obvious, do not without more as a matter of law constitute wilful misconduct, and where the misconduct consists of a failure or refusal to perform a duty required by statute, a bare failure or refusal without more does not constitute a wilful failure or refusal to perform such duty. Armour & Co. v. Little, 83 Ga. App. 762 (64 SE2d 707). Under the ruling of the Supreme Court in Aetna Life Ins. Co. v. Carroll, 81 Ga. App. 592 (59 SE2d 421) in which the Carroll case was applied and followed by this court.

The evidence in this case was in conflict as to whether the injuries sustained by the claimant's husband were caused by his alleged intoxication on the morning of the accident and there being some evidence to sustain the finding of the hearing director that said injuries were not caused by intoxication, the findings of the board in this regard cannot be disturbed. Herman v. Aetna Cas. &c. Co., 100 Ga. App. 172 (110 SE2d 552); Barbree v. Shelby Mut. Ins. Co., 105 Ga. App. 186 (123 SE2d 905), and cases therein cited.

Judgment reversed and remanded with direction. Nichols, P. J., and Frankum, J., concur.

1963

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