FERGUSON v. CITY OF MACON, 121 Ga. App. 128

Pannell, Judge. 1. (a) “An injury arises 'in the course of employment/ within the meaning of the workmen’s compensation act, when it occurs 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.” New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (118 SE 786). -(b) “An accident arises 'out of’ the employment when it arises because of it, as when the employment is a contributing proximate cause.

This and the condition stated above- must concur before the act can apply.” Id. Hn. 2 (a). -(c) “If the work of an employee or the performance of an incidental duty involves an exposure to the perils” of handling a firearm, “the protection of the compensation act extends to the employee while he is” handling the firearm “in the performance of his duties.” Id. Hn. 2 (b). 2.

Where, as in the present case, .a compensation claimant is employed as a deputy clerk in a recorder’s court, and his duties consist, among other things, of taking guns to or from court as required in a particular case being heard, and he was on duty in an early morning hour, and a police officer came in and exhibited to the clerk a small .22 caliber derringer pistol, and the clerk undertook to examine the weapon, cocked the firing mechanism and attempted to unbreach the weapon, and it accidently fired, injuring the clerk’s left hand, such injury did not arise out of the employment, for the reason that the examination of and the cocking of the firearm by the employee claimant out of which the injury arose was not incidental to any of the duties of the employee, nor did such cocking of the firearm constitute a causal connection between the conditions under which the employment was performed and the resulting injury, such as might have been the case if a police officer or other person on the premises had accidentally discharged the firearm and injured the claimant (see U.

S. Fidel. &c. Co. v. Phillips, 97 Ga. App. 729 (104 SE2d 542) and Fidelity & Cas. Co. of N. Y. v. Barden, 79 Ga. App. 260 (54 SE2d 443)), but it was solely for the gratification of the claimant’s own curiosity. The mere moving of a weapon out of the way so that one may engage in the duties for which he is employed is not involved here.

The evidence was sufficient to authorize the finding of facts hereinbefore set forth, and the award of the Board of Workmen’s Compensation denying compensation to such clerk claimant, if supported by the evidence, must be affirmed; and this is true even though the evidence might have also supported a contrary award. Accordingly, the judge of the superior court did not err in affirming the award of the Board of Workmen’s Compensation. Argued September 11, 1969 Decided January 15, 1970 Rehearing denied February 6, 1970 Adams, O’Neal, Steele, Thornton, Hemingway & McKenney, Hardy Gregory, Jr., for appellant.

Miller & Miller, Lawton Miller, Jr., for appellee. Judgment affirmed. Bell, C. J., Hall, P. J., Eberhardt, Quillian, and Whitman, JJ., concur. Jordan, P. J., and Deen, J., concur specially. Evans, J., dissents.