Liberty Mutual Insurance v. Scoggins

*266 Felton, J. The evidence conclusively shows that the claimant, upon no personal errand or mission of his own, went to the first floor from the second in the lap conveyor, seeking instructions concerning the performance of the job to which he had been assigned; that he had never worked at this job before and was inexperienced in the operation of the lap conveyor; and that the employer at the time of assigning him to the job failed to give him instructions concerning the performance of the work. Certainly he was furthering his employer’s business in seeking information which would enable him to perform the task to which he had been assigned. Thus, without more, we must conclude that the accident and injury resulted in the course of and out of the employment. It is contended, however, by counsel for the defendant that in order to meet the requirements of the definition of '“arising out of and in the course of the employment” (Code, § 114-102), the claimant must be shown to have sustained his injury at a place where he reasonably could have been in the performance of his duties, citing Employers Liability Assurance Corp. v. Woodward, 53 Ga. App. 778 (187 S. E. 142), and that he could not reasonably have been expected to be in the conveyor shaft, an admittedly dangerous place, in the performance of his duties, and that by entering this dangerous place he placed himself outside the scope of his employment. From an examination of the Woodward case, we observe that the rule stated there is a quotation from the opinion of Judge Bell in New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (2), 688 (118 S. E. 786), and there Judge Bell relies upon Fournier’s Case, 120 Me. 236 (113 Atl. 270, 23 A. L. R. 1156), as authority. The Fournier case is strikingly similar in principle and fact to the instant case, but compensation was denied there because the employee had been expressly forbidden to use a nope hoist in going between floors, and testified to that effect at the hearing. Such testimony is nowhere to be found in the present case. The claimant repeatedly denied knowledge of any rule .against using the conveyor to ride upon, and nowhere is this testimony contradicted. The record shows, however, that the employer knew of the practice of the employees’ using the lap conveyor in going back and forth between floors, and while he had prohibited its use for this purpose by discharging, in individual cases, those so. using it, he had not made its prohibition generally *267 known either by publishing a rule against the use of the conveyor in such manner, or by posting signs at or near the conveyor forbidding its use. Moreover, the last instance wherein he had indicated his disapproval had occurred more than a year prior to the accident, and in view of the fact that it is shown that the practice had continued and that the claimant had seen, at least on two occasions, other employees using the conveyor for the purpose to which he himself put it, we cannot say as a matter of law that his entering the conveyor shaft was unreasonable or constituted wilful misconduct such as to bar his recovery. American Mutual Liability Ins. Co. v. Smith, 67 Ga. App. 581 (21 S. E. 2d, 343). The case would not come under the provisions of the Code, § 114-105, which provides: No compensation shall be allowed for injury or death due to the employee’s wilful misconduct, including intentionally self-inflicted injury, or growing out of his attempt to injure another, or due to intoxication or wilful failure or refusal to use a safety appliance or perform a duty required by statute, or the wilful breach of any rule or regulation adopted by the employer and approved by the Industrial Board (State Board of Workmen’s Compensation), and brought to the knowledge of the employee prior to the accident. The burden of proof shall be upon him who claims an exemption or forfeiture under this section; and the rulings of this court in Shiplett v. Morgan, 58 Ga. App. 854 (200 S. E. 449), American Mutual Liability Ins. Co. v. Hardy, 36 Ga. App. 487 (137 S. E. 113), and Integrity Mutual Casualty Co. v. Jones, 33 Ga. App. 489 (126 S. E. 876), which hold that when a rule is not approved by the board (and no such rule had been approved by the board in this case), the violation is not wilful misconduct. On the question of the necessity of prior knowledge of the rule by the employee, see American Mutual Liability Ins. Co. v. Smith, supra. As another defense, counsel for the defendant seek to introduce the doctrine of ''"added risk” or "wanton incurrence of special danger,” citing 71 C. J. 403 (e), where it is stated: “An accident can not be said to arise out of the employment where it is due to a new and added peril to which the employee by his own conduct has needlessly exposed himself, unless there has been acquiescence by the employer.” It is striking that Corpus Juris cites some thirty-five cases as authority for this doctrine, everyone of which *268 is an English case. The English courts inadvertently • started the expression, “incurs a danger of his own choosing” in the much-cited case of Brice v. Lloyd (1909), 2 K. B. 804, which has led to much confusion in the English compensation cases. If a court wishes to deny an award on the ground that the injury did not arise out of the employment there is adequate language available without resorting to the wrongful use of the words “added risk.” Horovitz On Workmen’s Compensation, p. 131. As Justice Frankfurter said in his discussion of “assumption of risk” in Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 (1943) (63 Sup. Ct. 444, 87 L. ed. 610, 143 A. L. R. 967), added risk began life as a literary expression; its felicity led to a lazy repetition, and repetition soon established it as a legal formula, indiscriminately used to express different and sometimes contradictory ideas. In Associated Indemnity Corp. v. Industrial Accident Commission, 18 Cal. 2d, 40, 46 (1941) (112 Pac. 2d, 615), where the superintendent rode on a non-passenger switch engine, rather than walk, and sustained a broken leg in stepping off to avoid steam, Carter, J., said: “The doctrine urged by the petitioner [added risk] must be applied with extreme caution for the reason that it is barely distinguishable from the rules of contributory negligence and assumption of risk which are not applicable in compensation cases. Indeed, it may well be asserted that the doctrine of 'added risk’'— that is, where an employee assumed a risk greater than that usually incident to his employment, he can not recover — can not be followed in California because it is in effect nothing more than contributory negligence.” Our compensation act specifically obliterated the common-law defenses of negligence and assumption of risk (Code, § 114-206), and did not mean to leave open the identical defense for the employer by changing its name, and this is so well known as to require no citation of authority. It is entirely true that the employer may define the limits of the employee’s sphere of employment by prohibitions, rules, and regulations, and if the employee violates these he is outside the scope of his employment, and any injury sustained outside the scope t the employment is not compensable. In the instant case, however, the employer had not to the knowledge of the employee so limited the employee’s sphere of employment by publishing a rule, or otherwise prohibited the use of the conveyor to ride upon, and it *269 is clearly shown that, to the knowledge of the claimant, it had been the practice of the employees to make such use of the conveyor. We are of the opinion, therefore, that the finding of the board that the injury arose out of and in the course of the employment was authorized and that the court below did not err in affirming the award. Judgment affirmed■ Sutton, P. J., and Parker, J., concur.