Hardy v. Small

99 S.E.2d 862 (1957) 246 N.C. 581

John H. HARDY, Father, Essie Hardy, Mother, William H. Hardy, Deceased,
v.
Marie J. SMALL, Adm'x of Estate of Claude E. Small (Employer); Nationwide Insurance Company (Carrier).

No. 26.

Supreme Court of North Carolina.

September 18, 1957.

John W. Graham, Edenton, for plaintiffs, appellees.

Teague, Johnson & Patterson, Raleigh, for defendants, appellants.

BOBBITT, Justice.

The findings of fact, amply supported by competent evidence, establish, inter alia, that the deceased was an employee. Defendants' contention that this thirteen year old boy was an independent contractor in respect of the farm chores assigned to him when fatally injured is without merit. It is clear that the employer had the right to direct him in his work and to discharge him with or without cause. It is unnecessary to restate the factors that distinguish an independent contractor from an employee. McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, and cases cited.

Defendants' primary position is that, upon said findings of fact, the court was in error in its conclusion that the employee's death was by accident arising out of and in the course of his employment.

Whether an injury by accident arises out of and in the course of the employment is a mixed question of law and of fact. Horn v. Sandhill Furniture Co., 245 N.C. 173, 176, 95 S.E.2d 521, and cases cited.

Decision on this appeal turns on whether the specific findings of fact, considered in the light most favorable to plaintiffs, afford a sufficient factual basis for the determination that the employee's death was by accident arising out of and in the course of his employment. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596.

The basic rule is that the words "out of" refer to the origin or cause of the accident, and that the words "in the course of" refer to the time, place and circumstances under which it occurred. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266; Alford v. Quality Chevrolet Co., 246

N.C. 214, 217, 97 S.E.2d 869.

The question presented is one of first impression in this jurisdiction. Here the farm employee, who lived on the farm, sustained an injury by accident when returning from the barn, to which he had gone to feed the livestock, to the area of the house in which he lived.

An injury does not arise out of and in the course of the employment unless it is fairly traceable to the employment as a contributing proximate cause. Hence, injury by accident is not compensable if it results from a hazard to which the public generally is subject. Walker v. J. D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89; Marsh v. Bennett College, 212 N.C. 662, 194 S.E. 303, tornado cases; Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370, mad dog case.

In early cases in other jurisdictions, compensation was generally denied where the injury occurred upon a public street or highway on the ground that the hazard to which the employee was exposed was not peculiar to the employment but a risk common to all persons using the public street or highway. Annotation: 51 A.L.R. 509. In later decisions, injury on a public street or highway is generally held compensable if at the time the employee is acting in the course of his employment. Annotation: 80 A.L.R. 126, and supplemental decisions; 58 Am.Jur., Workmen's Compensation, sec. 226.

It is established in this jurisdiction that an injury caused by a highway accident is compensable if the employee at the time of the accident is acting in the course of his employment and in the performance of some duty incident thereto. Massey v. Board of Education, 204 N.C. 193, 167 S.E. 695; Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Guest v. Brenner Iron & Metal Co., supra.

Ordinarily, the rule is that an injury by accident is not compensable if sustained by the employee while on his way to or returning from the premises where the work of his employment is performed. Hunt v. State, 201 N.C. 707, 161 S.E. 203; Bray v. W. H. Weatherly & Co., 203 N.C. 160, 165 S.E. 332; Lassiter v. Carolina Telephone Co., 215 N.C. 227, 1 S.E.2d 542; McKenzie v. City of Gastonia, 222 N.C. 328, 23 S.E.2d 712; Bryan v. T. A. Loving Co., 222 N.C. 724, 24 S.E.2d 751. Such 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. Dependents of Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147; Edwards v. T. A. Loving Co., 203 N.C. 189, 165 S.E. 356; Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540.

The crucial question posed for decision on this appeal is this: Was the employee acting in the course of his employment and in the performance of some duty incident thereto during the period while walking between the area of the house where he lived and the barn where he fed the livestock? In our view, under the circumstances here presented, this question must be answered in the affirmative.

The Act "`should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.' Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 593. But the rule of liberal construction can not be employed to attribute to a provision of the Act a meaning foreign to the plain and unmistakable words in which it is couched." Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, 762.

Deceased lived with his parents, two brothers and a sister. The father did no farm work. His work was elsewhere. He testified: "I rented the house from Claud Small, Jr. I did not pay him rent, my folks worked with them." It seems clear that occupancy of this house by the Hardy family was permitted by the operator of the farm so that the wife and children would be available for farm labor as the need therefor arose.

Deceased was employed to help with the crops when his services were needed and when he (out of school) was available for the work. It would seem unrealistic and unduly restrictive to say that deceased would be in the course of his employment while in a particular field where he was directed to perform labor on a particular day but not while going back and forth across the farm between the area of the house and such field.

The feeding of the livestock was just as much a part of the operation of the farm as tending the crops. In respect of the particular work he was employed and directed to do when fatally injured, the circumstances impel the conclusion that the real nature of his employment was to go to the barn and feed the livestock. The feeding of the livestock being a part of the operation of the farm as a whole, the trip (across the farm) between the area of the house and the barn may reasonably be considered within the terms of his employment. So considered, the period of his employment commenced when he left the area of his house for the barn; and, in the absence of evidence of deviation, terminated upon his return from the barn to the area of the house. The fact that he was injured while in such employment and on a mission for his employer affords sufficient factual basis for the determination that his injury arose out of and in the course of his employment.

It is noteworthy that the public highway was neither necessary nor used as a means of access to the barn, i. e., in the sense of travel along the highway. The fact that he had to cross the highway on his way to and from the barn constituted an additional hazard of his employment; for if the house and barn had not been separated by the public highway, means of access between the area of the house and the barn would have been equally available and safer.

Affirmed.