Battle v. Bryant Electric Company , 15 N.C. App. 246 ( 1972 )

189 S.E.2d 788 (1972)

Mrs. Carrie Bell BATTLE, Mother and Guardian Ad Litem of David Battle and Charles Andrew Battle, Sons, David Daniels, Deceased Employee,
v.
BRYANT ELECTRIC COMPANY, Inc., Employer, and
American Automobile Insurance Company, Carrier.

No. 7215IC280.

Court of Appeals of North Carolina.

July 12, 1972. Certiorari Denied August 31, 1972.

Beech & Pollock, by H. E. Beech, Kinston, for plaintiff appellees.

Smith, Moore, Smith, Schell & Hunter, by Stephen P. Millikin, Greensboro, for defendant appellants.

Certiorari Denied by Supreme Court August 31, 1972.

MALLARD, Chief Judge.

The only question brought forward and presented on this appeal is whether the Industrial Commission committed error in finding and concluding that the injury to and death of David Daniels arose out of and in the course of his employment with the defendant employer.

"The phrases ``arising out of' and ``in the course of' the employment are not synonymous, but involve two distinct ideas and impose a double condition, both of which must be satisfied in order to render an injury compensable. The words ``out of' refer to the origin or cause of the accident, and an accident arises out of the employment if there is a causal connection between the accident and the employment, or if the accident is the result of a risk originating in the employment or incidental to it. * * *

* * * * * *

Where the cause of the accident is unexplained but the accident is a natural and probable result of a risk of the employment, the finding of the Industrial Commission that the accident arose out of the employment will be sustained; but where the cause of the accident is known and such cause is independent of, unrelated to, and apart from the employment, and results from a hazard to which others are equally exposed, compensation is not recoverable.

The words ``in the course of' the employment refer to the time, place, and circumstances of the accident, and an accident arises in the course of the employment if it occurs while the employee is engaged in a duty which he is authorized or directed to undertake or in an activity incidental thereto." 5 Strong, N.C. Index 2d, Master and Servant, § 55.

In Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957), it is said:

"The basic rule is that the words ``out of' refer to the origin or cause of the accident, and that the words ``in the course of' refer to the time, place and circumstances under which it occurred. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266; Alford v. Quality Chevrolet Co., 246 N.C. 214, 217, 97 S.E.2d 869.

* * * * * *

An injury does not arise out of and in the course of the employment unless it is fairly traceable to the employment as a contributing proximate cause. Hence, injury by accident is not compensable if it results from a hazard to which the public generally is subject. Walker v. J. D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89; Marsh v. Bennett College, 212 N.C. 662, 194 S.E. 303, tornado cases; Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370, mad dog case."

The evidence in this case tends to show that on this occasion the deceased was engaged in a special emergency job to cover the exposed water tank so that it would not float out of the hole in which it had been placed if the river should rise, and that the accident occurred on a Saturday, which was outside regular working hours. The truck that killed deceased customarily had been furnished to him by the employer as a means of transportation to and from the work sites. Also, he habitually warmed up the truck each morning preparatory to going to the job site before he ate breakfast.

On the morning in question the deceased "was going back to work at six" to help fill in dirt around the tank. It was ten minutes until six and before he had eaten breakfast when his landlady saw him warming up the truck. Perhaps the deceased may have thought he was late in going to work, or perhaps he detected something wrong with the truck while he was warming it up and had decided to attempt to fix it, but the record is silent as to how and why he got under the dump body and as to how or what caused it to come down on him and crush him between it and the chassis of the truck. It is not necessary, however, for a plaintiff in such cases to offer evidence explaining the exact cause of the accident. Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d 633 (1950) and Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20 (1941). See also 99 C.J.S. Workmen's Compensation § 235. Whatever caused this accident, it must have happened very quickly because the landlady was close enough to hear the truck running while the deceased was warming it up, and there is no evidence that she heard him make any outcry before he was crushed to death by the truck.

The use by the deceased of the employer's truck on this occasion was convenient and advantageous for both employer and employee, and the evidence tends to show that the employer regularly furnished this employee a truck for transportation to and from the job.

In 1 Larson, Workmen's Compensation Law, §§ 17.00 and 17.10, it is said:

"When the journey to or from work is made in the employer's conveyance, the journey is in the course of employment, the reason being that the risks of the employment continue throughout the journey.

* * * The justification for this holding is that the employer has himself expanded the range of the employment and the attendant risks. He has, in a sense, sent the employee home on a small ambulatory portion of the premises, just as the sailor on a British ship is conceived to be on a little floating fragment of Britain herself."

We hold that the fatal accident in this case was the result of a risk originating in and traceable to the employment. It is uncontradicted that the deceased was killed by the vehicle furnished him by the employer for transportation, and the evidence is sufficient to show that his death occurred at a time when he was preparing the truck as he customarily did for the return trip to the job site. See Beck v. Ashton, 124 Pa.Super. 307, 188 A. 368 (1936) and 99 C.J.S. Workmen's Compensation § 235. We also hold that the evidence was sufficient to support the finding that the deceased sustained an injury by accident arising out of and in the course of his employment with the defendant employer, which accident resulted in his immediate death, and that the award of compensation was proper.

Affirmed.

CAMPBELL and BRITT, JJ., concur.