Warren v. City of Wilmington , 43 N.C. App. 748 ( 1979 )

259 S.E.2d 786 (1979) 43 N.C. App. 748

Florence WARREN, Plaintiff Employee,
v.
CITY OF WILMINGTON, Employer,
Travelers Insurance Company, Carrier Defendants.

No. 7910IC133.

Court of Appeals of North Carolina.

November 20, 1979.

Hunoval & Fullwood by Ernest B. Fullwood, Wilmington, for plaintiff-appellant.

Crossley & Johnson by John F. Crossley, Wilmington, for defendant-appellee.

VAUGHN, Judge.

Plaintiff excepts to the sixth and seventh findings of fact and the conclusion of law. She contends the Commission erred in concluding as a matter of fact and as a matter of law that she did not sustain an "injury by accident arising out of and in the course of employment." G.S. 97-2(6). We agree with plaintiff and conclude that the Commission's findings of fact (to which defendants did not except) disclose that plaintiff's injury is covered by the North Carolina Workmen's Compensation Act. G.S. 97-1 et seq.

"Whether the accident grew out of the employment is a mixed question of law and fact which the court had the right to review on appeal. If the detailed findings of fact forced a conclusion opposite that reached by the commission, it was the duty of the court to reverse the commission." Alford v. Chevrolet Co., 246 N.C. 214, 216, 97 S.E.2d 869, 871 (1957).

For a compensable injury to exist, the two related but different ideas embodied in the phrase "arising out of and in the course of employment" must be present on the facts of the particular case. "Arising out of" the employment is construed to require that the injury be incurred because of a condition or risk created by the job. There must be a causal relation between the job and the injury. "In the course of the employment" is construed to refer to the time, place and circumstances under which the accident occurs. Hinkle v. Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953).

Generally, the Workmen's Compensation Act does not cover injuries that occur while the employee is going to or returning from his work. Here, however, plaintiff's job required her to travel from her place of work to various places about the community. The job exposed her to the risk of travel. She was required to work nights and holidays. Often these were the only times the people with which plaintiff worked could meet with her. She was required to write reports. The report writing time and the time traveling to and from meetings was counted towards her work hours. Going to and from the meetings was a part of plaintiff's job duties for which she was paid the same as when actually in the office or at community meetings. There is no suggestion that plaintiff was on a personal errand when the accident occurred. Plaintiff's accident on a city street as she was returning home to write a report about the meeting she had just attended was an accident in the course of her employment. Mion v. Marble & Tile Co., Inc., 217 N.C. 743, 9 S.E.2d 501 (1940).

The denial of plaintiff's claim was apparently based on the Commission's finding that plaintiff made a substantial deviation from the most direct route between the meeting place to plaintiff's next destination. The factual finding that plaintiff did not take the most direct route does not, standing alone as it does, support the conclusion that there was a deviation from the course of her employment. The Commission expressly found that plaintiff was permitted to take whatever route she chose so long as she was within her work area and that she took the indirect route in order to avoid heavier traffic. These findings negate any notion that the failure to select the most direct route was a deviation from the scope of plaintiff's employment.

The Commission's findings of fact compel the conclusion of law that plaintiff was upon the public street on a mission for her employer and was injured in an accident which arose out of and in the course of her employment. Wesley v. Lea, 252 N.C. 540, 114 S.E.2d 350 (1960); Hinkle v. Lexington, supra; Martin v. Georgia-Pacific Corp., 5 N.C.App. 37, 167 S.E.2d 790 (1969).

The opinion and award of the Commission is reversed, and the case is remanded for entry of an award consistent with this opinion.

Reversed and remanded.

ERWIN, J., concurs.

HILL, J., dissents.

HILL, Judge, dissenting:

There was ample evidence to support the Commissioner's findings. Plaintiff was not necessarily obligated to take the most direct route from the church to her home. In this case, however, she swung a loop which was nine blocks north of and fourteen blocks west of her home. By inference, she would have to return south nine blocks and eastward fourteen blocks to arrive at her home. A map of the town was used by the Commissioner to show that plaintiff traveled several miles out of the way rather than approximately one-fourth mile in a direct route to her home. Her route was through the downtown area and substantially past her home. Plaintiff agreed that this was a holiday with no traffic or less than usual traffic, and this defeats her argument as to why she took the "out-of-way" route.

Taking all of the testimony of the plaintiff and her witness into account, together with the physical facts, it is a reasonable, fair, and honest assumption that the plaintiff was on a personal objective and that it was a deviation from her employment. See Alford v. Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957), citing Withers v. Black, 230 N.C. 428, 58 S.E.2d 668 (1949). The Hearing Commissioner so found by his order; the Full Commission ratified the order and by doing so ratified his finding. I dissent from the opinion of this Court and concur with the order entered by the Commission.