Sandy v. Stackhouse Incorporated , 258 N.C. 194 ( 1962 )

128 S.E.2d 218 (1962) 258 N.C. 194

John Wiley SANDY, Father; Berthan Mae Sandy, Mother; Lou Ann Sandy, J. C. Sandy, Glenn Sandy, Douglass Ray Sandy and Jeanette Sandy, minor brothers and sisters appearing by their next friend T. B. Johnson, of Wiley Jackson Sandy, Deceased, Employee
v.
STACKHOUSE INCORPORATED, Employer, American Mutual Liability Insurance Company, Insurer.

No. 466.

Supreme Court of North Carolina.

November 28, 1962.

Jack Senter, Robert A. Cotten, Fuquay Springs, for appellants.

I. Weisner Farmer, Raleigh, for appellees.

DENNY, Chief Justice.

The appellants have not brought forward in their brief nor do they discuss any of their exceptions and assignments of error. Ordinarily, exceptions in the record not set out in appellants' brief, or in support of which no reason or argument is stated or authorities cited, will be taken as abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. at page 810.

The appellants direct their argument to the proposition that, since the deceased employee was taken to South Carolina for emergency duty and required to work more than his usual eight hours a day, or 40 hours per week, he was continuously on duty from the time he left North Carolina until his death; that he was subject to call at any time, and that he had no time he could call his own. The appellants concede, however, that at the time of the death of the deceased employee he was not engaged in doing any specific task for his employer, but insist that the continuous employment doctrine applies to the facts in this case as laid down in Walker v. Speeder Machinery Corporation, 213 Iowa 1134, 240 N.W. 725 and in Griffith v. Cole Bros., 183 Iowa 415, 165 N.W. 577, L.R.A.1918F, 923, and that the plaintiffs are entitled to recover compensation.

In the case of Walker v. Speeder Machinery Corporation, supra, the employee was sent to various cities in the State of Ohio to do certain work for his employer and was ordered, by wire, to report at Pittsburgh, Pennsylvania, for work to be done on Monday following his arrival in Pittsburgh by train on a Sunday afternoon. The employee was in Pittsburgh for the sole purpose of doing work for his employer in connection with the erection or demonstration of some machinery which had been shipped to Pittsburgh by the employer. The employee arrived in Pittsburgh, registered at a hotel, took a nap which lasted through the ordinary time for an evening meal, and then inquired of the clerk, about nine o'clock in the evening, where he could get something to eat. He was directed to a nearby restaurant. While on his way to get his evening meal he received injuries from which he died. The deceased employee had no personal business in Pittsburgh. On these facts his widow was allowed to recover.

In Griffith v. Cole Bros., supra, the deceased, a worker on a bridge, having finished his work for the day, while sitting in a lodging tent provided by the employer and constructed near the scene of the bridge, was killed by a stroke of lightning. The Court held it was not sufficient that the employee "was injured while in the course of his employment. It must further appear that his injury arose out of such employment." Compensation was denied.

Cases in other jurisdictions are not binding on this Court; even so, in our opinion, the factual situation in the case of Walker v. Speeder Machinery Corporation, supra, is distinguishable from that in the instant case, while the opinion in the case of Griffith v. Cole Bros., supra, supports the position of the appellees in this case.

The findings of fact of the Industrial Commission are conclusive on appeal when they are supported by competent evidence, even though there is evidence that would support a finding to the contrary. McGinnis v. Old Fort Finishing Plant, 253 N.C. 493, 117 S.E.2d 490; Pitman v. Carpenter, 247 N.C. 63, 100 S.E.2d 231; Champion v. Tractor Co., 246 N.C. 691, 99 S.E. 2d 917; Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612; Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97; Hegler v. Mills Co., 224 N.C. 669, 31 S.E. 2d 918.

Whether an accident arose out of the employment is a mixed question of law and fact. Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524; Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862; Horn v. Sandhill Furniture Co., 245 N.C. 173, 95 S.E.2d 521.

The Commission found facts which clearly show that the deceased employee, although temporarily assigned to work in a distant town in another State, with board and room furnished by the power company for which the emergency work was being done, was off duty and upon a personal errand, unrelated to any duty in connection with his employment when he was struck by an automobile and killed. The facts found by the Commission are supported by competent evidence.

In the case of Bryan v. T. A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, this Court said: "The Act does not contemplate compensation for every injury an employee may receive during the course of his employment but only those from accidents arising out of, as well as, in the course of employment. Where an injury cannot fairly be traced to the employment as a contributing proximate cause, or comes from a hazard to which the workman would have been equally exposed apart from the employment or from a hazard common to others, it does not arise out of the employment. Lockey v. Cohen, Goldman & Co., supra (213 N.C. 356, 196 S.E. 342); Walker v. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89; Marsh v. Bennett College, 212 N.C. 662, 194 S.E. 303; Plemmons v. White's Service, Inc., supra (213 N.C. 148, 195 S.E. 370). The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. Lockey v. Cohen, Goldman & Co., supra."

The words "out of" refer to the cause of an accident, while the words "in the course of" have reference to the time, place and circumstances under which it occurred. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680.

In Hildebrand v. McDowell Furniture Co., 212 N.C. 100, 193 S.E. 294, this Court said: "``So it has been stated as a general proposition that the phrase "out of and in the course of the employment" embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the master's business.'"

Ordinarily, when an employee is off duty the relationship of master and servant is suspended; therefore, there is no causal relation between the employment and an accident which happens during such time. Canter v. Bd. of Education, 201 N.C. 836, 160 S.E. 924; Ridout v. Rose's 5-10-25¢ Stores, Inc., 205 N.C. 423, 171 S.E. 642; Hildebrand v. McDowell Furniture Co., supra; Horn v. Sandhill Furniture Co., supra; Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869.

The judgment of the court below is

Affirmed.