Johnson Coffee Co. v. McDonald.

Error to the Circuit Court of Hamilton County.-HON. OSCAR YARNELL, Judge.,

W. H. WATKINS, for appellant.

JONES & MCGHEE, for appellees.

MR. EDWARD J. SMITH, Special Justice, delivered the opinion of the Court.

This case arises under the Workmen's Compensation Law (chapter 123, Acts of 1919). An award having been made by the circuit judge, an appeal in the nature of a writ of error has been prayed directly to this court, as provided by section 32 of said act.

The facts, which are either admitted in the answer to the petition or developed by the proof, are uncontroverted, and are as follows:

On January 28, 1920, Mrs. Cora McDonald, who was employed as a packer by the Johnson Coffee Company of Chattanooga, Tenn., left the building in which she was employed, went across the street, procured some lunch, and as she was going to the third floor of said building to eat her lunch, the elevator, which was operated by some one on the outside thereof, did not stop at the third floor, but ran past the same, and Mrs. McDonald, becoming excited, attempted to get off the elevator, but fell into the elevator shaft and was killed.

It is admitted that the Coffee Company allowed its employees to eat their lunch during the noon hour on

Johnson Coffee Co. v. McDonald.

premises, and that Mrs. McDonald was so engaged at the time she met her death. She was earning $8 a week at the time of her death, and her daughter, Pearl McDonald, a girl about seventeen years old at that time, was likewise earning $8 a week in the employ of the Coffee Company, the earnings of the mother and daughter being pooled for the support of the mother, the daughter Pearl, a daughter Alice McDonald, twelve years of age, and a son, George McDonald, about eight years of age.

On May 6, 1918, Mrs. McDonald obtained a divorce from her husband, W. M. McDonald, who lived in Georgia, but did not contribute to the support of his wife or three children, except that he would at times buy shoes for the children or send little sums of money to them to obtain gifts at Christmas. There is no conflict in the evidence that Mrs. McDonald was actually supporting the children, and had been doing so for a number of years prior to her death. On the day following her death, her divorced husband, W. M. McDonald, returned from Georgia and obtained employment at the Milne Chair Company, at Chattanooga, where his daughter Pearl also obtained employment, and together they were earning about $30 a week at the time this case was heard in the court below, whereas Mrs. McDonald and Pearl McDonald were jointly earning $16 a week prior to Mrs. McDonald's death.

The proof shows that W. M. McDonald, the father, works intermittently, due to his bad health, being at times able to work only a few days

Johnson Coffee Co. v. McDonald.

The court below found that the injury which caused Mrs. McDonald's death arose out of and in the course of her employment as defined by subsection (d), section 2, of chapter 123, Acts of 1919, and that Pearl McDonald, who will be eighteen years old on February 15, 1921, Alice McDonald, who will be eighteen years old on September 8, 1925, and George McDonald, who will be eighteen years old on May 1, 1930, were dependent upon Mrs. Cora McDonald at the time of her death. The court awarded them the sum of $5 a week for a period not to exceed four hundred weeks, during dependency, which award was for the amount and in the form prescribed by subsection 16 of section 30.

The Coffee Company contend:

(1) That the injury which resulted in Mrs. McDonald's death did not arise out of and in the course of her employment; and (2) that the three children were not dependent upon their mother, because their father was alive, was under a legal obligation to support them, and, as a matter of fact, after the mother's death obtained employment in Chattanooga with a view of helping to support the children, although admittedly he had not done so for years before the mother's death, and that, as by section 30 of the act a conclusive presumption is created, that children under the age of sixteen years are wholly dependent upon the father, and, as there is a prima-facie presumption that children between sixteen and eighteen years of age are dependent upon the father, there was no evidence on which the award of the circuit judge could be based.

Johnson Coffee Co. v. McDonald.

As to the first point, the cases arising under workmen's compensation laws are practically unanimous in holding that injuries received by employees while in the act of leaving, or preparing to leave, the place of employment to get lunch or refreshment, or while eating lunches on the premises, as allowed by the employer, arise out of and in the course of employment. Terlecki v. Strauss, 85 N. J. Law, 454, 89 Atl., 1023; Rayner v. Furniture Co., 180 Mich., 168, 146 N. W., 665, L. R. A., 1916A, 22, Ann. Cas., 1916A, 386; Clem v. Chalmers Motor Co., 178 Mich., 340, 144 N. W., 848, L. R. A., 1916A, 352; In re Sundine, 218 Mass., 1, 105 N. E., 433, L. R. A., 1916A, 318, and note.

In the case of Re Sundine, supra, it was held that an injury suffered by an employee upon stairs which were not under the employer's control, but afforded the only means of going to and from the workroom, while leaving the premises for the purpose of procuring a luncheon, arose out of and in the course of the employment within the meaning of the Workmen's Compensation Act. Appended to this case, as reported in L. R. A. 1916A, 318, is a note citing numerous English cases, all holding that injuries received during lunch hours on the premises of the employer are to be considered as incidental to and arising out of and in the course of the employment.

In the recent case of Armstrong v. Redford, [1920] A. C., 757, decided on March 26, 1920, the House of Lords held that, where a girl employed as a machinist left the work where she was employed during the dinner hour and went to canteen on the premises for lunch, and after

Johnson Coffee Co. v. McDonald.

finishing her dinner, and while hurrying back to work, slipped on a flight of stone steps leading from the canteen into the street, whereby she broke her ankle, this was an injury arising out of and in the course of her employment.

In Bradbury's Workmen's Compensation (3 Ed.), 523528, a large number of cases bearing on the question as to whether injuries at meal time are accidents arising out of and in the course of employment are collected and discussed, and the following rule is deduced:

"Where an employer provides a place for his employees to eat, or directs or permits them to go to a place for that purpose, he owes to them the same duty of protection from danger there that he does at the place where such employees work."

In Harper's Workmen's Compensation, section 40, p. 83, the law is thus stated: "The following interruptions have been held proper, and not to take the workman out of the employment: Going to order lunch, and injured while still on the premises; a workman taking advantage of an opportunity afforded by the employer to eat his meals on the premises, or at the place of his work, and this regardless of whether he is paid for the time taken at meals or not. An injury to an employee on his way to lunch at the noon hour, as a general rule, arises out of the employment, and it has been held to make no difference if the accident happens off the premises of the employer, if the employee uses premises which he has a right to use, and which provide the only available way to reach the point to which he goes for lunch."