Opinion
50209.
ARGUED FEBRUARY 10, 1975.
DECIDED FEBRUARY 26, 1975.
Action for damages. Fulton Superior Court. Before Judge Holt.
Hill, Jones Farrington, E. Lundy Baety, for appellant.
King Spalding, Charles H. Kirbo, Charles M. Shaffer, William A. Clineberg, Jr., for appellee.
An injury suffered by an employee as the result of an alleged unprovoked assault by security guards as he was attempting to leave the building upon termination of work on the shift assigned to him is, where both employer and employee are subject to workmen's compensation procedure, within the jurisdiction of the State Board of Workmen's Compensation.
ARGUED FEBRUARY 10, 1975 — DECIDED FEBRUARY 26, 1975.
Lynch, the plaintiff in this damage suit, contends that he was on the point of descending a stairway to leave the building at the conclusion of his shift when assaulted by security guards; that he attempted to avoid a blow by one of them and fell down the stairs, toppling another, and that his hand was injured. He further contends that he was captured and held by a third at the foot of the stairs, and that following the incident he was wrongfully discharged.
The defendant sought and obtained summary judgment on the basis that the controversy is within the exclusive jurisdiction of the Board of Workmen's Compensation. Affidavits and exhibits attached to the motion support its contention that, prior to the end of the work shift, security guards were notified that the plaintiff was absconding with company material, that pursuant to company regulations he was stopped at the head of the stairs and notified to come to the security office for interrogation; that he attempted to escape by grappling with one of the guards and both tumbled down the stairs; that after the fight was broken up he was again notified that he was wanted for questioning and he then bolted and successfully removed himself from the premises. Exhibits attached to the motion contain a summary of evidence at a hearing before the State Labor Department Employment Security Agency which terminated favorably to the defendant.
Fowler v. Southern Wire Iron, 104 Ga. App. 401 ( 122 S.E.2d 157) martials the strongest arguments we have found for the conclusion that an assault by a fellow servant is not within workmen's compensation jurisdiction where the facts show that the assault was intentional, was generated by ill will, and was initiated by a person in authority in the corporate hierarchy. This case was reversed by the Supreme Court in Southern Wire Iron v. Fowler, 217 Ga. 727 ( 124 S.E.2d 738).
If the defendant's version of the affray is correct of course, the plaintiff can recover in neither forum. If the plaintiff's version is true, he denies only that he knew the cause of the assault, but not that the cause stated is incorrect. The strongest statements in the counter affidavit are that he was "attacked without warning" and that he was at no time "requested, ordered or directed to stop by the security guard." The authority of the guards to stop him for a proper purpose is not denied. No other reason for their action is suggested. On the contrary, the complaint alleges that the guards were at all times acting within the scope of their employment. It thus appears without contradiction from the pleadings, affidavits, and exhibits unobjected to, that the security guards had probable cause to question the plaintiff before he left his employer's premises and were acting within the scope of their authority in attempting to do so, under rules and regulations which were a part of the work contract of both. The plaintiff contends that, since his work shift had been completed, the incident did not arise "in the course of" his employment; that is, "within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto." Hartford Acc. c. Co. v. Welker, 75 Ga. App. 594 ( 44 S.E.2d 160). It is, however, uncontradicted that the employer had security guards posted within the building and that such guards had the right under company regulations to interrogate employees (though not, of course, the right to commit an unprovoked assault). The question remains, therefore, one of fact, since the employee was within the security administration of the employer until he departed the premises, and thus in the course of employment for this purpose, it being a duty incident to his employment to observe proper security regulations within the area.
The trial judge correctly held in favor of the defendant that the plaintiff's alleged injury, if any, arose out of and in the course of his employment, thus precluding a common law action for damages.
Judgment affirmed. Evans and Stolz, JJ., concur.