Harris v. Jack O. Farrell, Inc. ( 1976 )

229 S.E.2d 45 (1976) 31 N.C. App. 204

Ellis HARRIS, Son of Richard Harris, Deceased, et al., Employees, Plaintiffs,
v.
JACK O. FARRELL, INC., Employer, Indiana Lumbermens Mutual Insurance Company, Carrier, Defendants.

No. 769IC365.

Court of Appeals of North Carolina.

October 20, 1976.

Clayton & Ballance by Frank W. Ballance, Jr., Warrenton, for plaintiffs-appellants.

Spears, Spears, Barnes, Baker & Boles by Alexander H. Barnes, Durham, for defendants-appellees.

PARKER, Judge.

The findings of fact made by the Hearing Commissioner, which were adopted as its own by the Full Commission, are supported by competent evidence and are conclusive on this appeal. The determinative question presented by this appeal is whether the deceased employees died as result of injuries received "by accident arising out of and in the course of" their employment. G.S. 97-2(6) and (10). This is a mixed question of law and fact. Allred v. Allred-Garner, Inc., 253 N.C. 554, 117 S.E.2d 476 (1960). We agree with the Industrial Commission that while each of the deceased employees sustained an injury by accident which resulted in his death, such injury by accident did not arise out of and in the course of his employment with defendant employer.

The fatal accident occurred after the employees had completed their day's work at the job site, had punched out on the time clock, had left the place of their employment, and had started homeward in a truck owned and operated by a fellow employee whom they paid to transport them. Generally, injuries sustained in accidents occurring off the employer's premises while the employee is going to or returning from work are not covered by the Workmen's Compensation Act, since in those cases there is not such a casual connection between the employment and the accident that the latter can properly be considered as "arising out of and in the course of" the former. Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959); Insurance Co. v. Curry, 28 N.C.App. 286, 221 S.E.2d 75 (1976); 1 Larson, Workmen's Compensation Law, § 15; 82 Am.Jur.2d, Workmen's Compensation, § 255. An exception to this general rule is made, however, and "[s]uch an injury is compensable when it is established that the employer, as an incident of the contract of employment, provides the means of transportation to and from the place where the work of the employment is performed." Hardy v. Small, 246 N.C. 581, 585, 99 S.E.2d 862, 866 (1957). Plaintiffs here cannot bring their claims for benefits within the exception. Contrary to their contention, the evidence did not compel a finding by the Commission that the employer had an established and long-standing practice of furnishing transportation to its employees, originally by the employer-owned truck and later by the employer-subsidized truck of its superintendent, such as to make the furnishing of transportation an incident of the contract of employment. Indeed, the uncontradicted evidence that the employees paid for their transportation negatives such a finding.

The orders appealed from are

Affirmed.

BRITT and CLARK, JJ., concur.