Harless v. Flynn , 1 N.C. App. 448 ( 1968 )

162 S.E.2d 47 (1968) 1 N.C. App. 448

Betty HARLESS
v.
Joyce Ann Church FLYNN (Amended subsequent to the marriage of the defendant to read Joyce Ann Kimberlin).

No. 68SC29.

Court of Appeals of North Carolina.

July 10, 1968. Certiorari Denied September 3, 1968.

Robert L. Grubb, Lexington, for plaintiff appellee.

Walser, Brinkley, Walser & McGirt, by Walter F. Brinkley, Lexington, for defendant appellant.

BROCK, Judge.

The basic question for determination by this Court has been succinctly pointed up by the Record on Appeal and the briefs as follows:

Does G.S., Chap. 97 (The North Carolina Workmen's Compensation Act) bar a common law action by an employee against a fellow employee for damages negligently inflicted in an automobile accident in the parking lot maintained by their employer for use by the employees, when both employees were in process of leaving the employer's parking lot during the lunch hour, with the acquiescence of the employer, to eat lunch at some place away from the employer's premises?

The answer to this question will be YES if the plaintiff's alleged injuries were injuries by accident arising out of and in the course of her employment within the meaning of G.S. § 97—2(6). This is so because an employee who sustains an "injury * * * arising out of and in the course of * * * employment, "caused by the negligence of a fellow employee who was acting within "the course of employment," as that term is used in G.S. § 97—2(6), may not maintain an action at common law against the negligent employee. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21. Here, according to the stipulated facts, the time, place and circumstances of the collision placed the plaintiff and defendant in identical positions with respect to their employment. Thus, if the plaintiff was within the course of her employment at the time of the collision, the defendant was also.

It seems clear that any injuries sustained by the plaintiff in the collision were injuries "by accident." The remaining inquiry is whether the accident was one arising out of and in the course of her employment.

In numerous decisions, the Supreme Court of North Carolina has had occasion to consider the application of these words to particular fact situations. It has made clear that the phrase encompasses two separate and distinct concepts—" out of" and "in the course of"—both of which must be satisfied in order for particular injuries to be compensable under the Act. Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693; Conrad v. Cook-Lewis Foundry Company, 198 N.C. 723, 153 S.E. 266.

From the briefs, it is apparent the parties were of the opinion that the present controversy could best be determined by reference to North Carolina cases involving accidents occurring in "mealtime" and "coming and going" situations. Clearly, those cases are pertinent here, but only because they apply general principles found in other situations. There is nothing special about the "mealtime" and "coming and going" cases, and they can best be understood by applying to them the general principles of other cases.

The phrase arising out of has reference to the origin or cause of the accident. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569. But this is not to say that the accident must have been caused by the employment. "Taking the words themselves, one is first struck by the fact that in the ``arising' phrase the function of employment is passive while in the ``caused by' phrase it is active. When one speaks of an event ``arising out of employment,' the initiative, the moving force, is something other than the employment; the employment is thought of more as a condition out of which the event arises than as the force producing the event in affirmative fashion." 1 Larson, Workmen's Compensation Law, § 6.50, p. 45. The North Carolina Supreme Court has similarly stated the connection between the employment and the accident: "Where any reasonable relationship to the employment exists, or employment is a contributory cause, the court is justified in upholding the award as ``arising out of employment.' " Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479. (Emphasis added.)

An accident has a reasonable relationship to the employment when it is the result of a risk or hazard incident to the employment. An injury arises out of the employment when it comes from the work the employee is to do, or out of the service he is to perform, or as a natural result of one of the risks of the employment; the injury must spring from the employment or have its origin therein. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838; Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865. For an accident to arise out of the employment there must be some causal connection between the injury and the employment. When an injury cannot fairly be traced to the employment as a contributing proximate cause, or if it comes from a hazard to which the employee would have been equally exposed apart from the employment, or from the hazard common to others, it does not arise out of the employment. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308.

The words in the course of have reference to the "time, place and circumstances" under which the accident occurred. Clark v. Burton Lines, supra. Clearly, a conclusion that the injury occurred in the course of employment is required where there is evidence that it occurred during the hours of employment and at the place of employment while the claimant was actually in the performance of the duties of the employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668; Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869.

With respect to time, the course of employment begins a reasonable time before actual work begins, Altman v. Sanders, supra, and continues for a reasonable time after work ends, Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432, and includes intervals during the work day for rest and refreshment. Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97; Pickard v. E. M. Holt Plaid Mills, 213 N.C. 28, 195 S.E. 28.

With respect to place, the course of employment includes the premises of the employer. "Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer's premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer." Bass v. Mecklenburg County, 258 N.C. 226, 233, 128 S.E.2d 570, 575; quoting with approval from Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S. Ct. 221, 72 L. Ed. 507, 509. "It is usually held that an injury on a parking lot owned or maintained by the employer for his employees is an injury on the employer's premises." Davis v. Devil Dog Manufacturing Co., 249 N.C. 543, 545, 107 S.E.2d 102, 103; quoted and applied in Maurer v. Salem Co., supra.

With respect to circumstances, injuries within the course of employment include those sustained while "``the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time' to do that thing." Conrad v. Foundry Company, supra, 198 N.C. at 727, 153 S.E. at 269; quoted with approval in Clark v. Burton Lines, supra. Thus, where the employee is engaged in activity which he is authorized to undertake and which is calculated to further, directly or indirectly the employer's business, the circumstances are such as to be within the course of employment. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643. Therefore, the fact that the employee is not engaged in the actual performance of the duties of his job does not preclude an accident from being one within the course of employment. Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320. And an employee may be in the course of his employment when he is on the way to the place of his duties, Altman v. Sanders, supra, leaving the place of his duties at the end of the day, Maurer v. Salem Co., supra, or leaving upon learning that there was no work for him to do. Morgan v. Cleveland Cloth Mills, 207 N.C. 317,177 S.E. 165.

In tending to his personal physical needs, an employee is indirectly benefiting his employer. Therefore, the course of employment continues when the employee goes to the washroom, Rewis v. New York Life Insurance Co., supra, takes a smoke break, Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869, takes a break to partake of refreshment, Pickard v. E. M. Holt Plaid Mills, supra, goes on a personal errand involving temporary absence from his post of duty, Bellamy v. Great Falls Manufacturing Co., 200 N.C. 676, 158 S.E. 246, voluntarily leaves his post to assist another employee, Riddick v. Richmond Cedar Works, 227 N.C. 647, 43 S.E.2d 850.

Thus, it is the conjunction of all three of these factors—time, place and circumstances—that brings a particular accident within the concept of course of employment. If, in addition to this, the accident arose out of employment, then any injury resulting therefrom is compensable under the Act.

The "mealtime" and "coming and going" cases, traditionally classified as two particular types of situations, should be treated as any other case by applying the foregoing general principles.

The two "mealtime" cases discussed by the parties in their briefs are Horn v. Sandhill Furniture Co., 245 N.C. 173, 95 S.E.2d 521; and Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E.2d 93. In Horn, the claimant was injured during his lunch break when hit by an automobile as he was crossing from the plant site to the company parking lot on the other side of a state highway. The Court denied compensation on the ground that the injury did not arise out of and in the course of employment, relying on these facts: (1) The accident occurred off the premises of the employer; (2) The claimant was engaged in the activity of crossing a state highway to eat his lunch; and (3) The risk of the hazards of the highway were those common to the general public. In Matthews, compensation was denied upon the ground that the injury and death of the plaintiff's decedent did not arise out of his employment. The injuries occurred when, following the sounding of the lunch whistle, the decedent attempted to jump onto the back of a truck moving across the employer's premises. Noting that the decedent had no apparent reason for getting onto the truck, the Court held that the injury did not arise out of the employment since it "did not result from a hazard incident to his employment." Id. at 234, 60 S.E.2d at 96. Far from precluding recovery for mealtime injuries, the Matthews case makes it clear that such recovery may be had, for the Court therein conceded that the decedent was in the course of his employment. In Moore v. Superior Stone Co., 242 N.C. 647, 89 S.E.2d 253, a case not discussed by the parties in their briefs, the Supreme Court, in a per curiam decision, affirmed a denial of compensation upon the ground that the injury did not arise out of the employment. The claimant was injured while on his lunch break when he, "out of curiosity or for reasons unknown, wired the blasting machine * * * and in his attempt to set off a single dynamite cap ignorantly and accidentally detonated the 300 dynamite caps beside the doghouse resulting in a terrific explosion and in the injuries which he sustained." Id. at 648, 89 S.E.2d at 254.

It seems, therefore, that these three cases involving injuries during the lunch period are not properly labeled "mealtime" cases, for the element of time is merely incidental, not decisive. In Horn, place, activity and the nature of the risk out of which the injury arose were the crucial factors. In Matthews and Moore, the nature of the risk and the activity in which the employee was engaged were determinative. Nothing in any of these cases suggests that mealtime, as a time, or the activity of eating lunch or preparing to eat lunch, as a circumstance, are not within the course of employment. To the contrary, the Matthews case makes it clear that mealtime is within the course of employment, even where such time is completely free for the employees: "The work hours were 8 to 4:45, except that from 12 noon to 12:45 work was stopped for lunch. During this time employees were not paid, and were free to eat their lunch there or go anywhere they wished. Most of them ate their lunch on the premises, some went home for lunch and some went to a store a quarter of a mile away." Id., 232 N.C. at 231, 60 S.E.2d at 94. In light of these facts, the Court conceded that the course of employment requisite was satisfied. Nothing in Horn or Moore suggests a contrary view.

The basic rule disallowing recovery for injuries sustained in going to and coming from work is well established by many decisions in this jurisdiction. See cases collected in 5 Strong, N.C.Index 2d, Master and Servant § 62. There are certain clearly settled exceptions to the rule, however, including one for injuries sustained on the premises of the employer. See Altman v. Sanders, supra; Maurer v. Salem Co., supra; Davis v. Devil Dog Manufacturing Co., supra. These cases make it clear that the disallowance of recovery in the usual coming and going case is based, not upon the ground that the circumstances (i. e., the employee's going to or leaving work) are not within the course of employment, but upon considerations of time and place. In addition, the question of arising out of is not satisfied in many of these cases, especially where the injury is due to the hazards of the public highway—risks common to the general public. Thus, recovery was denied where the injury was sustained in a highway accident, away from the premises, some five hours after the employee left work. Alford v. Quality Chevrolet Co., supra.

These cases clearly show that while recovery may be denied where an injury is sustained while the employee is going to or coming from work, such denial is not upon the ground that going and coming are circumstances not within the course of employment. To the contrary, the cases clearly show that such activity is within the course of employment if the time and place requisites are satisfied, and that injuries sustained while engaged therein are compensable if the injury arose out of employment: i. e., that they were due to an employment-connected risk. Altman v. Sanders, supra; Maurer v. Salem Co., supra; Bass v. Mecklenburg County, supra; Davis v. Devil Dog Manufacturing Co., supra; Morgan v. Cleveland Cloth Mills, supra; Gordon v. Chair Co., 205 N. C. 739, 172 S.E. 485.

The plaintiff here was injured in a collision between two automobiles operated by fellow employees in the company parking lot. Is the hazard, or risk, of injury under such circumstances one that is peculiar to the employment? The risk of injury in automobile mishaps is one that is obviously common to the public at large. Horn v. Sandhill Furniture Co., supra. Yet, where large numbers of employees drive automobiles to their place of employment and provision is made for parking on the employer's premises, it is clear that the employment itself has created conditions in which the risk of automobile-connected injuries is different in kind and possibly greater in degree than that confronted by the public at large. The risk may be increased by a large number of automobiles, concentrated in a confined space, coming into and going out of the lot at approximately the same times, operated by employees who may be preoccupied with thoughts of work to be begun, or exhausted from work completed and anxious to get to their respective homes or other places of relaxation and refreshment. Thus, the Supreme Court has held that injuries sustained in automobile mishaps in company parking lots arise out of employment. Altman v. Sanders, supra; Maurer v. Salem Co., supra. This would seem to be the kind of hazard from which the Workmen's Compensation Act was designed to protect employees. "The philosophy which supports the Workmen's Compensation Act is that the wear and tear of human beings in modern industry should be charged to the industry, just as the wear and tear of machinery has always been charged." Vause v. Vause Farm Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176. It clearly appears that plaintiff was injured by accident arising out of her employment.

If, as alleged in the plaintiff's complaint, her injury was due to the negligence of the defendant, the above conclusion is bolstered by that fact. "An injury suffered by an employee while engaged in his master's business within the scope of his employment proximately resulting from the negligence of fellow employees is, as to the employee, an ``accident' arising out of and in the course of his employment." Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623.

The plaintiff was injured in the company parking lot, shortly after the whistle signaled the beginning of a one-hour lunch period during which employees were free to go anywhere they pleased. She was a passenger in an automobile which was being driven toward the parking lot exit for the purpose of taking its occupants off the premises for lunch. The plaintiff was, therefore, injured in the course of her employment with respect to time, place and circumstances. Matthews v. Carolina Standard Corp., supra. Therefore, the plaintiff's injuries arose in the course of her employment within the meaning of G.S. § 97—2(6).

The view that on-premises mealtime injuries may be within the coverage of Workmen's Compensation provisions, depending upon the circumstances of the injury, finds support among legal writers and in the decisions of other jurisdictions. See 1 Larson, Workmen's Compensation Law § 1550—1554 (1966); 7 Schneider, Workmen's Compensation Text § 1632—1635 (3d ed.1950); 58 Am.Jur., Workmen's Compensation § 228 (1962); 99 C.J.S. Workmen's Compensation § 240 (1958); annots., Compensation For Injuries During Lunch Hours On Employer's Premises, 6 A.L.R. 1151 (1920); Liability Under Workmen's Compensation Acts For Injuries Occurring During Lunch Or Meal Period, 26 N.C.C.A. (NS) 271 (1950), 1 N.C.C.A. (NS) 791 (1937).

We hold therefore that under the allegations of the complaint and the stipulated facts, the plaintiff is barred by G.S. Chap. 97 from proceeding in this common law action against the defendant. It follows that in our opinion Judge Olive erred in overruling defendant's plea in bar, and that the judgment entered by Judge Martin must be vacated. Defendant's plea in bar should have been sustained, and plaintiff's action dismissed.

The judgment awarding damages to the plaintiff in this action, and the verdict upon which the judgment is based, are vacated and set aside; and this action is dismissed.

Reversed and dismissed.

MALLARD, C. J., and PARKER, J., concur.