Travelers Insurance v. Curry , 28 N.C. App. 286 ( 1976 )

221 S.E.2d 75 (1976) 28 N.C. App. 286

The TRAVELERS INSURANCE COMPANY
v.
Paul Franklin CURRY et al.

No. 7518SC675.

Court of Appeals of North Carolina.

January 7, 1976. Certiorari Denied April 6, 1976.

Deal, Hutchins & Minor by William K. Davis, Winston-Salem, for plaintiff-appellant.

O'Connor & Speckhard by Donald K. Speckhard, Greensboro, for Leo Hailey and James Elbert Alston, defendants-appellees.

Booth, Fish, Simpson & Harrison by H. Marshall Simpson, Greensboro, for Nellie B. McRae, Administratrix of the Estate of Harvey Davis, defendant-appellee.

Certiorari Denied by Supreme Court April 6, 1976.

BRITT, Judge.

Plaintiff assigns as error the trial judge's findings of fact and conclusions of law that the accident was not within the scope and course of Hailey's and Alston's employment and thus not excluded from coverage by its policy of insurance. Plaintiff contends that the judgment is contrary to law and against the greater weight of the evidence. We find no merit in these contentions.

The Declaratory Judgment Act, G.S. 1-253 et seq., may be utilized to alleviate uncertainty and clarify litigation. Although it is not applicable to claims under the Workmen's Compensation Act, it is applicable to construction of insurance contracts and in determining the extent of coverage. Cox v. Transportation Co., 259 N.C. 38, 129 S.E.2d 589 (1963); Iowa Mutual Ins. Co. v. Simmons Inc., 258 N.C. 69, 128 S.E.2d 19 (1962). If the claims for personal injuries asserted by defendants Alston and Hailey fall within the scope of the Workmen's Compensation Act they would be subject to the exclusion provision of plaintiff's policy of insurance.

Whether an injury by accident is compensable under the Workmen's Compensation Act is a mixed question of law and fact. Lee v. Henderson & Associates, 17 N.C.App. 475, 195 S.E.2d 48 (1973), aff'd, 284 N.C. 126, 200 S.E.2d 32 (1973); Bryan v. Church, 267 N.C. 111, 147 S.E.2d 633 (1966). Under G.S. 97-2(6) this is dependent upon whether the accident arose out of and in the course of the employment. Generally, injuries sustained in accidents occurring while an employee is going to or coming from work are not covered by the Act. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957). However, where the employer provides transportation for his employees pursuant to the contract of employment, then he may be subject to liability for purposes of workmen's compensation. Archie v. Lumber Co., 222 N.C. 477, 23 S.E.2d 834 (1943).

The salient factor is whether provision for transportation is a real incident to the contract of employment. Lassiter v. Telephone Co., 215 N.C. 227, 1 S.E.2d 542 (1939). This precept is manifested as something more than mere permission; it approaches employee transportation as a matter of right. In Jackson v. Bobbitt, 253 N.C. 670, 676, 117 S.E.2d 806, 810 (1961), we find:

"``The rule has been established in accordance with sound reason that the employer's liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of the contract. Pursuant to this rule, the employee is in the course of employment if he has a right to the transportation, but not if it is gratuitous, or a mere accommodation. . . .'" (Quoting from Lassiter v. Telephone Co., 215 N.C. 227, 229, 1 S.E.2d 542, 543 [1939] and authorities therein cited.)

We think the foregoing is a correct statement of the law governing this appeal. Thus, as found by the trial judge, Curry would not expose himself to liability for workmen's compensation purposes by gratuitously furnishing transportation for his employees.

The record contains substantial competent evidence which fully supports the trial judge's findings of fact and conclusions of law. While we note that the record also contains evidence permitting an opposite result, where the facts found by the trial judge, sitting without a jury, are supported by substantial competent evidence they are conclusive on review by an appellate court. Transit, Inc. v. Casualty Co., 285 N.C. 541, 206 S.E.2d 155 (1974); Insurance Co. v. Clark, 23 N.C.App. 304, 208 S.E.2d 861 (1974). Conflicts between Curry's answers to plaintiff's interrogatories and his testimony at trial go not to his competency but to the credibility and weight of his testimony. Blackwell v. Butts, 278 N.C. 615, 180 S.E.2d 835 (1971); Fletcher v. Fletcher, 23 N.C.App. 207, 208 S.E.2d 524 (1974).

For the reasons stated, the judgment is

Affirmed.

BROCK, C. J., and MORRIS, J., concur.