Where an employee enters the place of business of a third person for the purpose of collecting a bill for his employer from a customer of such third person, and while there engages in profanity and disorderly conduct on account of which the proprietary third person forcefully ejects such employee from his place of business, thereby causing injury from which the employee dies, such injury to the employee does not arise out of and in the course of his employment within the meaning of the Code, § 114-102. Such injury will be attributed to wilful act of a third person for reasons personal to the employee, which is expressly excepted from operation of the cited Code section compiled from the workmen's compensation act, and therefore is not compensable under that law.
No. 13679. JUNE 18, 1941. REHEARING DENIED JULY 10, 1941. *Page 493 This case arose in a claim filed by Mrs. Esther A. Fried on behalf of herself and minor children, against Fried's Garage as employer, and United States Fidelity and Guaranty Company as insurance carrier, under the workmen's compensation act.
Theodore D. Fried died on April 26, 1939, as a result of an attack made on him the previous night by Gordon Bush, at a time when it is claimed that Fried was acting within the scope of his duties as manager of the tire department of Fried's Garage.
The claim was tried before a director of the Industrial Board. He found that the death was accidental within the workmen's compensation act; that it arose in the course of Fried's employment, but did not arise out of his employment; that the injury was due to his own wilful misconduct; and that it was caused by the wilful act of a third person directed against the employee, for reasons personal to the employee, and therefore was not compensable. The board affirmed this award, denying compensation. The judge of the superior court reversed these findings and held that the claimant was entitled to compensation. On writ of error the Court of Appeals reversed the judgment of the superior court, and the finding of the board of the Industrial Commission was affirmed on the sole ground that the death of Fried was caused "by the wilful act of a third person directed against the employee for reasons personal to the employee," and therefore was not compensable.
On a contested question of fact, where there is evidence to support the finding of the Industrial Board, its finding of such facts is final and can not be reviewed. Georgia Casually Co. v.Martin, 157 Ga. 909, 915 (122 S.E. 881); IndependenceIndemnity Co. v. Sprayberry, 171 Ga. 565 (156 S.E. 230);Ocean Accident Guarantee Corporation v. Farr, 180 Ga. 266,270 (178 S.E. 728). The evidence in this case shows that Theodore D. Fried was employed by Fried's Garage as manager of the tire department. As such manager he had exclusive charge of sales and collections, and had no certain hours of duty, being allowed to work at any time he pleased. Some time before April 25, 1939, Fried had sold some tires to one T. P. Woodward on credit, for which he had not collected. *Page 494 In the afternoon of April 25 Fried went to a gasoline station owned and operated by Gordon Bush, in the city of Macon, where he hoped to contact Woodward. This was a station where Woodward at times traded. Fried asked Bush whether he knew where Woodward was, and was told that Woodward had not been in the station that day. Fried left, and about four o'clock that afternoon he returned to inquire a second time about Woodward, and was told that Woodward had been to the station since Fried's first visit, and that, on being advised that Fried was looking for him. Woodward said he was going to Cordele, to get some money with which to pay for the tires. Fried then left. Woodward lived at the same house as did Bush, which was the home of the sister of Lawrence Kane, a bookkeeper for Bush. About half after eight o'clock that night Fried drove up in his car with his wife, parked in front, and went into the station. His wife remained outside.
The above summary from the opinion of the Court of Appeals is a correct statement of the preliminaries to the final event. The substance of the testimony of witnesses for the respondents tended to show the following: Bush was at his office at 8:30 o'clock in the night of the day on which all of the events transpired, and was eating supper. When Fried came in he was angry, and demanded to know where Tommie Woodward was. Bush said, "I told you this afternoon Tommie had gone to Cordele." Fried replied, "You tell Tommie Woodward I am going to send the sheriff down for him." When he said that, an employee of Bush said: "You can't send a sheriff for anybody. If you put everybody in jail that owes bills, there wouldn't be enough jails to hold half of them." Fried was very angry and cursing and disrespectful to those in the office of Bush. His profanity was very pronounced, and a fight was threatened between the employee of Bush and Fried, which Bush quieted down by saying: "Let's not have any trouble at all." Then Fried entered into a heated controversy with a customer of Bush, who happened to be in the office, and Bush asked Fried several times to leave his office, which Fried refused to do; and then Bush shoved him out of the door of his office, in consequence of which Fried, being afflicted with heart disease, died that night. When Fried got on the sidewalk he said, "If I wasn't a sick man I would fight the hell out of you." Bush testified that he would have liked to see Fried collect his money, and that Fried's brother had offered him employment, *Page 495 but the conduct of Fried, the apparent dispute by Fried of Bush's statement that Woodward had gone to Cordele, the very profane language used by Fried, his general discourtesy, and his refusal to leave Bush's office when ordered several times to do so, caused Bush to push Fried out of his office.
The question is whether, under these facts as found by the director and board of the Industrial Commission, the accidental injuries resulted from the "wilful act of a third person directed against the employee for reasons personal to the employee," and therefore was not compensable under the Code, § 114-102. The Court of Appeals of Georgia has very aptly defined the term "arising out of" the employment, as follows: "It `arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises `out of' the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. . . It must be incidental to the character of the business, and not independent of the relation of master and servant." New Amsterdam CasualtyCo. v. Sumrell, 30 Ga. App. 682, 688 (118 S.E. 786):Liberty Mutual Insurance Co. v. Neal, 55 Ga. App. 790, 800 (191 S.E. 393). In another case where a drapery hanger was required to travel on a train and was shot by a passenger in an unprovoked assault, in holding that his death was not compensable, the Court of Appeals said: "It is not enough to say that the accident would not have happened if the servant had not been engaged in the work at the time, or had not been in that place. It must appear that it resulted from something he was doing in the course of his work, or from some peculiar danger to which the work exposed him. . . The most that can be said is that the injury would not have occurred but for claimant's employment bringing him to the time and place of the altercation between the conductor and the passenger *Page 496 which precipitated the shooting. . . There must be a causative connection between the accident and the employment. It must arise `out of' the employment." Maryland Casualty Co. v. Peek,36 Ga. App. 557, 559-60 (137 S.E. 121). This court, in PinkertonNational Detective Agency v. Walker, 157 Ga. 548, 550 (122 S.E. 202), said, while holding the employer liable: "It is plain that it was the intention of the legislature to protect employers from liability in cases where injury resulted to the employee, even though he was in the course of his employment, because of personal ill-will towards the employee, `for reasons personal to [or against] such employee.'"
In the instant case Fried was ordered out of Bush's office, and in refusing to go he became a trespasser. He became engaged in angry dispute with Bush's customer. He used violent and profane language. He nearly started a fight with one of Bush's clerks. His visit to Bush's office suggested doubt as to the truthfulness of Bush's statement that Woodward, the debtor, had gone to Cordele. It is manifest that the visit to Bush's office for the purpose of collecting the debt had no connection with the act of Bush in pushing Fried out of the house, which resulted in his death. It must be concluded that the unfortunate death of Fried resulted from "the wilful act of a third person directed against an employee for reasons personal to such employee." Accordingly the judgment of the Court of Appeals is
Affirmed. All the Justices concur except Grice and Duckworth,JJ., who dissent.