Martin Ex Rel. Martin v. Georgia-Pacific Corp. , 5 N.C. App. 37 ( 1969 )

167 S.E.2d 790 (1969) 5 N.C. App. 37

Virginia H. MARTIN, Widow and Next Friend of Wanda Ann Martin, Teresa Jean Martin, Rebecca Sue Martin, Roy Earl Martin, Jr. and Joseph Quinton Martin, Roy Earl Martin, dec'd., Employee
v.
GEORGIA-PACIFIC CORPORATION, Employer, Self-Insurer.

No. 696IC99.

Court of Appeals of North Carolina.

June 18, 1969.

Allsbrook, Benton, Knott, Allsbrook & Cranford by Dwight R. Cranford, Roanoke Rapids, and Johnson, Johnson & Johnson, by Bruce C. Johnson, Conway, for plaintiff appellees.

Poyner, Geraghty, Hartsfield & Townsend, by John Q. Beard, Raleigh, for defendant appellant.

MALLARD, Chief Judge.

It is well established in this State that the Workmen's Compensation Act is not intended to provide general health and accident insurance, but its purpose is to provide compensation for those injuries which result from accidents which arise out of and in the course of the employment. Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Lewis v. Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949). From an examination of the evidence presented we think there was sufficient competent evidence to support the Industrial Commission's findings of fact, and we are bound by them. Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953); G.S. § 97-86, Williams v. Brunswick County Boardof Education, 1 N.C.App. 89, 160 S.E.2d 102 (1968). See also Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Martin's death was by accident. The main question presented for decision by defendant's assignments of error is whether the evidence was sufficient to support the finding and conclusion that the injury by accident arose out of and in the course of employment. G.S. § 97-2(6).

In 1 Larson, Workmen's Compensation Law, § 25.00, p. 443 it is said "Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable." Also in 1 Larson, Workmen's Compensation Law, § 25.21, p. 445, it is stated that "traveling employees, whether or not on call, usually do receive protection when the injury has its origin in a risk created by the necessity of sleeping and eating away from home. The hotel fire cases are the best illustration of this. Closely related are the injuries sustained in the process of getting meals. So when a traveling man slips in the street or is struck by an automobile between his hotel and a restaurant, the injury has been held compensable, even though the accident occurred on a Sunday evening, or involved an extended trip occasioned by employee's wish to eat at a particular restaurant." (Emphasis added.) See Kiger v. Bahnson Service Co., 260 N.C. 760, 133 S.E.2d 702 (1963), and Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962). This seems to be the majority rule based upon an analysis of cases from various parts of the United States. Illustrative of such cases are: Thornton v. Hartford Acc. & Indem. Co., 198 Ga. 786, 32 S.E.2d 816 (1945), Zurich Insurance Company v. Zerfass, 106 Ga. App. 714, 128 S.E.2d 75 (1962), Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074 (1957), Kohl v. International Harvester Company, 9 A.D. 2d 597, 189 N.Y.S.2d 361 (1959).

In the Kohl case the employee was sent to Ohio to assist in putting on a demonstration of his employer's products at a so-called field day, and after working until a late hour, left his motel and undertook a journey of approximately ten miles to obtain his evening meal and some incidental relaxation at a particular restaurant. While en route to such restaurant he was involved in a fatal automobile accident. The Supreme Court of New York held that the employee died in an accident which arose out of and in the course of his employment and affirmed an award entered by the Workmen's Compensation Board. Accord, Alexander Film Company v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074 (1957); Walker v. Speeder Mach. Corp., 213 Iowa 1134, 240 N.W. 725 (1932); Robinson v. Federal Telephone & Radio Corp., 44 N.J.Super. 294, 130 A.2d 386 (1957).

In the case of Thornton v. Hartford Acc. & Indemn. Co., supra, it is said:

"A traveling salesman is taken away from his home or headquarters by his employment; and, because of the nature of his work, he usually can not return home each night. He must of necessity eat and sleep in various places in order to further the business of his employer; and the employer recognizes these necessities and usually pays the expenses of his lodging and meals, as was done in this case.

While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons. Such an employee is in continuous employment, day and night. This does not mean that he can not step aside from his employment for personal reasons, or reasons in no way connected with his employment, just as might an ordinary employee working on a schedule of hours at a fixed location. He might rob a bank; he might attend a dance; or he might engage in other activities equally conceivable for his own pleasure and gratification, and ordinarily none of these acts would be beneficial or incidental to his employment and would constitute a stepping aside from the employment."

The facts stipulated and found by the Industrial Commission disclose that the deceased employee, Roy Earl Martin, was in Milwaukee at the request of his employer to attend a one-week training program. All expenses for the trip, including meals and lodging, were paid by the employer. Martin was sent to a school conducting the training program for the benefit of the employer's business, and at the time of the accident he was on his way to a restaurant to eat his evening meal. The evidence does not reveal that he was required to eat his meals at the hotel, but under the circumstances he could eat his meals at a place of his choice in Milwaukee. That this was a necessary incident of the employment is recognized by the employer when it agreed to pay for his meals. In the absence of some requirement of the employer specifying where he should eat we think it is immaterial under the evidence and facts of this case whether he could have eaten at the hotel where he was staying. Even if we assume that he deviated from the course of employment to walk three or four blocks from his hotel to see yachts moored on the Milwaukee River and that this was purely a personal mission, the facts supported by competent evidence clearly show that at the time of the accident he had abandoned this personal sight-seeing mission and was on his way to eat the evening meal. In order to attend the training program Martin had to travel from North Carolina to Milwaukee. He had to eat and he had to sleep. These were necessities incidental to the trip. It is clear that he could not accomplish that which was assigned to him by the employer without traveling to Milwaukee, and eating and sleeping while there. We think there was a reasonable relationship between Martin's employment and the eating of meals. The eating of meals was reasonably necessary to be done in order that he might perform the act he was employed to do, to wit, attendance at the training program in Milwaukee. We are of the opinion and so hold that while Martin was on his way to eat the evening meal, under the circumstances of this case, that he was at a place where he might reasonably be at such time and doing what he, as an employee, might reasonably be expected to do, and that in so doing he was acting in the course of and scope of his employment.

"An accident arises out of and in the course of the employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business." Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964). See also Rice v. Uwharrie Council Boy Scouts, 263 N.C. 204, 139 S.E.2d 223, (1964).

Defendant appellant relies strongly on two North Carolina cases to support its contention that Martin's death was not by accident arising out of and in the course of his employment. In Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218 (1962), the employee went out on a mission of his own to purchase a soft drink and some beer after he had completed his day's work. While returning to the motel he was struck by an automobile and died as a result of the injuries received. Compensation was denied by the Commission. The denial was affirmed on appeal. In Perry v. American Bakeries Co., supra, the employee was away from his home attending a sales meeting of the employer, at the expense of the employer. Employee arrived the day before the sales meeting was scheduled to begin and attended a social hour given by the employer at 5:30 P.M. Afterwards he had dinner and then went out on a mission of his own to the swimming pool, where he was injured. The Commission awarded compensation but the Supreme Court reversed. Each case is easily distinguishable from the instant case in that the employee was injured while engaging in an entirely personal function wholly independent of the employment. The purchase of drinks and swimming were not necessary incidents of the employment and there was no reasonable relationship between the employment and the soft drink, the beer, or the swimming. Other cases cited by defendant and not referred to herein are distinguishable.

After the Hearing Commissioner had filed his opinion and award based thereon and before the matter was heard by the Full Commission on appeal the defendant filed a written motion requesting that the Commission issue an order authorizing the receiving of additional evidence. The ground upon which the defendant bases its motion is that the witness Lane was mistaken when he testified that the hotel restaurant was closed on the date of the accident. At the hearing the Full Commission entered the following order relating to the motion:

"After considering all matters involved in this case the Full Commission is of the opinion that there has been no showing that the motion to receive further evidence in this case would produce any substantially material evidence which would in any manner change the results which have been reached in this case, and it is the opinion of the Full Commission that the defendant's motion to receive further evidence should be, and it is hereby, denied."

In the case of Green v. Eastern Construction Co., 1 N.C.App. 300, 161 S.E.2d 200 (1968), it is said:

"Motions to take additional evidence on appeal before the Full Commission are governed by the general law of this State for the granting of new trials on the grounds of newly discovered evidence. (See Rule XX, § 6 of Rules of the Industrial Commission.) Under our practice, a motion for new trial on the ground of new evidence is addressed to the discretion of the trial judge, and his decision, whether granting or refusing the motion, is not reviewable in the absence of an abuse of discretion."

In the case before us we are of the opinion and so hold that no abuse of discretion has been shown. This assignment of error is without merit.

In this case we think the fatal accident is fairly traceable to the employment and that a reasonable relationship to the employment exists.

We are of the opinion and so hold that the competent evidence was sufficient to support the finding and the conclusion that the fatal accident arose out of and in the course of employment.

The opinion and award of the Industrial Commission is affirmed.

Affirmed.

BRITT and PARKER, JJ., concur.