Burton v. American National Insurance , 10 N.C. App. 499 ( 1971 )

VAUGHN, Judge.

Defendants bring forth numerous assignments of error on appeal, but because of our disposition of the case, we need deal with only one of them. Defendants contend that the accident did not arise out of and in the course of the employment. “[Ujnder the North Carolina Workmen’s Compensation Act, Chapter 97 of the General Statutes, the condition antecedent to compensation is the occurrence of an injury (1) by accident (2) arising out of and (3) in the course of employment.” Berry v. Furniture Co., 232 N.C. 303, 60 S.E. 2d 97.

Did the drowning of Colan O. Austin while on a fishing trip arise out of and in the course of his employment? Guidelines for determining that question are found in Lewis v. Tobacco Co., 260 N.C. 410, 132 S.E. 2d 877:

“ ... To be compensable the injury must spring from the employment. Duncan v. Charlotte, 234 N.C. 86, 66 S.E. 2d 22. An injury to an employee while he is performing acts for the benefit of third persons is not compensable unless the acts benefit the employer to an appreciable extent. It is not compensable if the acts are performed solely for the benefit or purpose of the employee or third person. Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596. The fact that a pleasure trip for the benefit of the employee is without expense to the employee does not entitle him to compensation for injury received while on such trip even if all or a portion of the expense is borne by the employer as a gesture of good will. Berry v. Furniture Co., 232 N.C. 303, 60 S.E. 2d 97; Hildebrand v. Furniture Co., 212 N.C. 100, 193 S.E. 294. Where an employee at the time of his injury is performing acts for his own benefit, and not connected with his employment, the injury does not arise out of his employment. This is true even if the acts are performed with the consent of the employer and the employee is on the payroll at the time. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E. 2d 680. If employee’s acts are not connected with his employment but are for the benefit of himself and third persons at the time of his injury, he is not entitled to compensation even if he is injured while he is required by his employer to be away from his home and place of regular employment for a period of time on a mission for his employer. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E. 2d 218.”

In Lewis, the employee was a chauffeur and valet who was paid to drive the defendant’s office manager to a beach cottage and to perform other services while at the cottage. Lewis was killed while returning from a hunting trip on which his supervisor did not go, but gave him permission to go. At the time of his injury, Lewis was not performing acts connected with his employment, but performing acts for the benefit of himself. In the present case, Austin was not performing acts connected with his employment, nor did his employment require him to go fishing. He was fishing for his own pleasure at the time of his death. Perry v. Bakeries Co., 262 N.C. 272, 186 S.E. 2d 643, is another case in point. In that case, a route salesman was directed to attend a sales meeting in Greensboro. All of his expenses, including the room at the inn where the meetings were held, were paid. After attending a social hour sponsored by the employer, some of the employees, including claimant, decided to go swimming in a pool provided by the inn. Claimant was injured while diving. The Court reversed an allowance of an award under the Act, saying, “Where, as a matter of good will, an employer at his own expense provides an occasion for recreation or an outing for his employees and invites them to participate, but does not require them to do so, and an employee is injured while engaged in the activities incident thereto, such injury does not arise out of the employment.” We hold that the injuries did not arise out of and in the course of Austin’s employment.

This cause is remanded to the Industrial Commission for the entry of an order denying compensation.

Reversed and remanded.

Judges Bkock and Morris concur.