Williams Ex Rel. Williams v. Brunswick County Board of Education , 1 N.C. App. 89 ( 1968 )

160 S.E.2d 102 (1968) 1 N.C. App. 89

Monnie WILLIAMS, widow, and Next Friend of Melissa Williams and Amelia Lynn Williams, minor daughters of William Norman Williams, Deceased, Employee, Plaintiff,
v.
BRUNSWICK COUNTY BOARD OF EDUCATION, Self-Insurer, Employer, Defendant.

No. 67IC3.

Court of Appeals of North Carolina.

March 20, 1968.

Frink & Gore, Southport, for plaintiff appellee.

T. W. Bruton, Atty. Gen., by Christine Y. Denson, Raleigh, Staff Attorney, for employer, appellant.

MORRIS, Judge.

When supported by competent evidence, the findings of fact by the Industrial Commission on a claim properly constituted under the Workmen's Compensation Act are conclusive on appeal. Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953). From an examination of the evidence presented, we conclude that the defendant's assignments of error directed to findings of fact No. 4 and No. 5 cannot be sustained. We think there was sufficient competent evidence to support the findings, and we are bound by them.

The only question remaining is the application of legal principles to those facts. If the Commission correctly applied the legal principles, the award should be affirmed. If the injury was not, under North Carolina law, one "arising out of and in the course of" employment, the award should be reversed.

Ordinarily, an injury suffered by an employee while going to or from his work is not an injury arising out of and in the course of his employment. Humphrey v. Quality Cleaners and Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959), and cases there cited. As is the case with most all general rules, there are exceptions, and North Carolina has recognized some of the exceptions recognized by other jurisdictions.

Where an employee sustains injury going to or from his place of work on employer's premises or premises controlled by employer, the injury is compensable, provided no unreasonable delay is chargeable to employee. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962).

North Carolina has also allowed compensation where the injury occurred on the highway close to employer's premises and the employee was using the only means of ingress and egress to and from the work he was to perform, saying that the hazards of that route become the hazards of the employment. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957).

Where a cemetery caretaker employed by the city who had no telephone, regularly and daily made rounds of the funeral homes at night to determine what graves needed to be dug the next day, the Court held as compensable injury sustained by him when he was hit by an automobile while engaged in making these rounds. The employer was said to have consented to the making of the trip because of the established custom of the caretaker. Hinkle v. Lexington, supra.

North Carolina has long held as compensable injuries sustained by employees while on the way to or returning from work where the employer provides the means of transportation. Dependents of Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147 (1930); Edwards v. T. A. Loving Co., 203 N.C. 189, 165 S.E. 356 (1932); Massey v. Board of Education etc., 204 N.C. 193, 167 S.E. 695 (1933); Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540 (1939).

The question of whether the principle should be extended to the case where the employer, under the terms of the employment, paid the employee an allowance to cover the cost of transportation to and from work was first before the Supreme Court in Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d 633 (1950). There the employees were working some 15 or 20 miles from their homes, it was not convenient for them to procure living quarters at the place of their work, and they commuted daily alternating in the use of their automobiles. They were involved in an automobile collision on their way to work and received injuries. Each was paid $20.80 per week, in addition to his regular salary, to cover his living expenses and expense of traveling to and from work. The Court said, in affirming the award, "The Industrial Commission has consistently followed the majority view, and we are inclined to approve, where, as here, the cost of transporting the employees to and from their work is made an incident to the contract of employment." The principle was again applied in Kiger v. Bahnson Service Co., 260 N.C. 760, 133 S.E.2d 702 (1963).

In the case before us, the Commission found as a fact, and there is competent evidence to support it, that the deceased employee was paid $75.00 per month travel allowance to pay the expenses to and from his work. The Commission further found, based on competent evidence, that the deceased and other school officials frequently worked long and hard hours after the school day, often worked late hours; that the form on which the deceased had been working had to be out the following day; that it was necessary to work at a late hour to get the form ready for the printer; and that the deceased's duties as County Superintendent of Schools required him to be on duty call at all times.

Unquestionably the fatal accident is traceable to the employment as a contributing cause. The deceased was being paid an allowance by the employer to pay his travel expenses. "Where any reasonable relationship to employment exists, or employment is a contributing cause, the court is justified in upholding the award as ``arising out of employment'." Kiger v. Service Co., supra.

The conclusions of the Industrial Commission and the award based thereon are

Affirmed.

CAMPBELL and PARKER, JJ., concur.