Wesley Ex Rel. Wesley v. Lea , 252 N.C. 540 ( 1960 )

114 S.E.2d 350 (1960) 252 N.C. 540

Bryant B. WESLEY, by his Next Friend, John Wesley,
v.
Charlie M. LEA.

No. 384.

Supreme Court of North Carolina.

May 18, 1960.

Donald J. Dorey, R. B. Dawes, Jr., and R. B. Dawes, Sr., Roxboro, for plaintiff.

Spears, Spears & Powe, Durham, for defendant.

MOORE, Justice.

The ultimate question for decision on this appeal is whether the trial court had jurisdiction to proceed to judgment in the common-law action for damages for personal injuries arising from alleged actionable negligence, or whether the action is in the exclusive original jurisdiction of the Industrial Commission under the Workmen's Compensation Act, G.S. § 97-1 et seq.

If the trial court had jurisdiction, plaintiff has made out a prima facie case of injury by reason of the actionable negligence of defendant.

An injury sustained by a member of the North Carolina National Guard while on active duty is compensable under the Workmen's Compensation Act. "The term ``employee' shall include members of the North Carolina National Guard * * and members of the North Carolina State Guard, and members of these organizations shall be entitled to compensation for injuries arising out of and in the course of the performance of their duties at drill, in camp, or on special duty * * *." G.S. § 97-2(2).

"* * * (a)n employee, subject to the provisions of a Workmen's Compensation Act, whose injury arose out of and in the course of his employment, cannot maintain an action at common law against his coemployee whose negligence caused the injury. * * * To hold otherwise would, in a large measure, defeat the very purposes for which our Workmen's Compensation Act was enacted. Instead of transferring from the worker to the industry, or business in which he is employed, and ultimately to the consuming public, a greater proportion of the economic loss due to accidents sustained by him arising out of and in the course of his employment, we would, under the provisions for subrogation contained in our Workmen's Compensation Act, G.S. § 97-10, transfer this burden to those conducting the business of the employer to the extent of their solvency. The Legislature never intended that officers, agents, and employees conducting the business of the employer, should so underwrite this economic loss." Warner v. Leder, 234 N.C. 727, 732, 69 S.E.2d 6, 9.

In the instant case, if plaintiff's injury arose out of and in the course of his duties at drill and was caused by the negligence of defendant, while also performing his duties at drill, claim for compensation for the injury is in the exclusive original jurisdiction of the Industrial Commission. G.S. § 97-10.

Plaintiff and defendant were, at the time of the injury complained of, members of the North Carolina National Guard. They reported for duty at the Roxboro Armory at 7:00 A.M. on the day in question. After muster they were ordered by the Commanding Officer to proceed to the training site at Camp Butner and there perform duties as members of the kitchen detail in preparation of the noonday meal. Defendant was requested to drive his private car, without compensation, and consented. Plaintiff had authority to ride with him. Before arrival at Camp Butner there was an accident due to defendant's negligence in the operation of his car and plaintiff was injured. Plaintiff was on duty at drill under orders which he was in the act of carrying out when he was injured. His injury arose out of and in the course of his employment. Defendant was likewise on duty at drill, unless, as contended by plaintiff, he had deviated from the course of his employment and was "on a frolic of his own." Hunt v. State, 201 N.C. 707, 161 S.E. 203, has no application to this case. There the National guardsman was using his private car to reach encampment, had not reported for duty and was performing no duty at drill.

The crux of our inquiry is whether defendant had deviated from the course of his duty and, at the time of the accident, had abandoned drill and was in pursuit of purposes of his own. The facts are not in dispute. Company rules provided that vehicles on drill should proceed in convoy. At Copley's Corner Sergeant Gentry broke convoy and defendant, who was immediately behind the Sergeant, also broke convoy and followed the Sergeant. The only explanation of defendant's action in breaking convoy and following the Sergeant is from defendant himself. He stated that he intended to take an alternate route to Camp Butner, about two miles longer than the one followed by the convoy, to avoid the dust which the Army truck would create in traversing the dirt road from Copley's Corner to Camp Butner. Part of the route being followed by defendant was paved. Defendant was driving at a high rate of speed and for this reason his vehicle left the road at a curve and the accident and the injury to plaintiff ensued.

We do not think that these uncontradicted facts are sufficient to show an abandonment of drill and deviation from the course of employment by defendant. "It is universally held that ``the master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of executing his orders, or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable.' Howe v. Newmarch, 12 Allen (94 Mass.) 49." Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 722, 150 S.E. 501, 502. It is conceded that defendant had no authority to break convoy, but there is no evidence that his act in so doing was not for the purpose of executing his orders to proceed to Camp Butner and there engage in his duties as a member of the kitchen detail. Indeed, all of the evidence is to the effect that it was his intention to carry out his orders. Furthermore, he was following his superior, Sergeant Gentry. It does not appear that he was disregarding the object for which he had been detailed. It is true that defendant had the incidental purpose of avoiding dust and thereby was contributing to his own personal comfort. Such purpose does not constitute a deviation from the object of his mission. Parrish v. Armour & Co., 200 N.C. 654, 158 S.E. 188. Defendant broke convoy in violation of the Company rule, but this was nothing more than an act of negligence. He did not undertake thereby to do something outside the duty he had been detailed to perform. It was merely an alternate means of performing that duty and entailed disobedience of a regulation with respect to procedure. Howell v. Standard Ice & Fuel Co., 226 N.C. 730, 40 S.E.2d 197.

Plaintiff contends that the conduct of defendant in the operation of the car was not merely negligent, but was reckless and wanton. But to take the case out of the Workmen's Compensation Act the injury to an employee by a co-employee must be intentional. Warren v. Leder, supra, 234 N.C. at page 733, 69 S.E.2d 6. There is no evidence of any intention on the part of defendant to injure plaintiff.

Plaintiff assigns as error the submission of the issue set out in the record. He did not object or except to the submission of the issue and tendered none. "Where there are no objections or exceptions in the lower court to the issue submitted, or to the court's refusal to submit issues tendered, appellant may not challenge the issues for the first time on appeal in his assignments of error." 1 Strong: N.C.Index, Appeal and Error, sec. 25, p. 102; Walker v. Walker, 238 N.C. 299, 300, 77 S.E.2d 715.

But plaintiff maintains that the issue is insufficient to determine the question presented. He insists that an issue should have been submitted to determine whether or not plaintiff's injury arose out of and in the course of defendant's employment. "It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings." Griffin v. United Services Life Insurance Co., 225 N.C. 684, 686, 36 S.E.2d 225, 226. It is our opinion, and we so hold that the issue was sufficient. In the first place, it is framed so as to determine whether both plaintiff and defendant were on duty at drill at the time of the injury, that is, whether both were engaged in carrying on the work for which they were employed and were co-employees. Next, it inquires whether plaintiff's injury arose out of and in the course of his employment. The answer to the issue determines the question of jurisdiction. The answer was in the affirmative and this deprives the trial court of jurisdiction of the cause of action.

Plaintiff also assigns as error the peremptory instruction given by the court. The facts are not in conflict. "If the evidence is all one way, and there is no conflict, the judge may say to the jury that, if they believe the evidence, they may find a certain verdict, but he cannot direct them that they must so find from the evidence." 2 McIntosh: North Carolina Practice and Procedure, sec. 1516, p. 53; Broadway Bank v. Noble, 203 N.C. 300, 302, 165 S.E. 722. The trial judge complied with the approved rule of procedure.

In the trial below we find

No error.