Horn v. SANDHILL FURNITURE COMPANY

95 S.E.2d 521 (1956) 245 N.C. 173

Murray J. HORN (Employee)
v.
SANDHILL FURNITURE COMPANY (Employer), and
Hartford Accident & Indemnity Company (Carrier).

No. 463.

Supreme Court of North Carolina.

December 12, 1956.

Teague & Johnson, Raleigh, and Mason & Williamson, Laurinburg, for appellant.

Boyette & Brogden, Carthage, for appellees.

PARKER, Justice.

Claimant has two assignments of error. The first one is to the judgment, the second is that the judge erred in affirming the Full Commission's order that claimant did not sustain an injury by accident arising out of and in the course of his employment by the Sandhill Furniture Company.

The consideration of an appeal from a judgment of the Superior Court affirming or reversing an award made by the Full Industrial Commission, or affirming or reversing an order of the Full Commission denying a claim, is limited to a review of only such assignments of error, as are properly made that there was alleged error in matters of law at the trial in the Superior Court. Lewter v. Abercrombie Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609.

An exception to the judgment presents two questions: one, are the facts found sufficient to support the judgment, and two, does any error of law appear upon the face of the record? Rader v. Queen City Coach Co., supra; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696.

It is settled law that, "where an injury cannot fairly be traced to the employment as a contributing proximate cause * * * it does not arise out of the employment." Bryan v. T. A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, 754; Lewter v. Abercrombie Enterprises, Inc., supra; Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342; Walker v. J. D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89. Therefore, if claimant's injury cannot fairly be traced to his employment as a contributing proximate cause, it is not compensable under our Workmen's Compensation Act, G.S. § 97-1 et seq. Lewter v. Abercrombie Enterprises, Inc., supra; Berry v. Colonial Furniture Co., 232 N.C. 303, 60 S.E.2d 97; Gilmore v. Hoke County Board of Education, 222 N.C. 358, 23 S.E.2d 292. "There must be some causal relation between the employment and the injury." Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 269.

Whether an accident arose out of the employment is a mixed question of law and fact. Poteete v. North Star Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693; Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E.2d 93; Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370.

This Court said in Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298, 301: "The rule declared by the statute and uniformly upheld by this Court that the findings of fact made by the Industrial Commission, when supported by any competent evidence, are conclusive on appeal, does not mean, however, that the conclusions of the Commission from the evidence are in all respects unexceptionable. If those findings, involving mixed questions of law and fact, are not supported by evidence the award cannot be upheld."

That claimant sustained severe injuries is not disputed. Claimant has no exceptions to the findings of fact made by the Hearing Commissioner, and adopted as their own by the Full Commission on appeal, and affirmed by the Superior Court, except that he contends that the Superior Court erred in holding that the facts found from the evidence by the Full Commission supported its conclusion that his injury by accident did not arise out of and in the course of his employment by the Sandhill Furniture Company.

In Matthews v. Carolina Standard Corp., supra, the evidence upon which the Industrial Commission made its findings of fact and conclusions showed the following: The decedent was employed as a general laborer by defendant corporation in and about its planer mill and lumber yard. He was paid an hourly wage. The work hours were from 8:00 to 4:45, except that from 12:00 noon to 12:45 work was stopped for lunch. During this time employees were not paid, and were free to eat 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 nearby store. It did not affirmatively appear that decedent brought his lunch on the day of his injury. During the lunch recess the decedent attempted to get on a moving truck belonging to one Dockery and delivering lumber to defendant corporation on the premises, and in some way fell under the rear wheels, and was killed. Decedent had been given no order, and had no duty with the truck or its contents. The Court said [232 N.C. 229, 60 S.E.2d 95]: "We conclude that the Commission has found from the facts in evidence that they were insufficient to show any causal connection between the injury suffered and the employment of decedent by the defendant corporation. After a careful examination of all the evidence reported by the Commission, we think this conclusion was supported by the evidence and should have been upheld." The Full Commission denied the claim, the Superior Court reversed the Commission, and remanded the proceeding with instructions that an award of compensation be made, and this Court reversed the Superior Court.

In Bryan v. T. A. Loving Co., supra, the decedent was on his way to his place of employment to report for work. He alighted from a bus that had carried him to a point in front of and across the highway from his place of work. He started on foot across the highway behind the bus to his work. He was hit and killed by a car while he was still on the hard surface. This Court said: "We conclude that the claimant has failed to bring her claim within the provisions of the Workmen's Compensation Statute. The specific facts found are insufficient to sustain the conclusion that the injury resulting in death arose out of and in the course of the employment." [222 N.C. 724, 24 S.E.2d 755] See also Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604.

In Bray v. W. H. Weatherly & Co., 203 N.C. 160, 165 S.E. 332, 333, it is said: "The relation of employer and employee is usually suspended when the servant leaves the place of his actual employment and is resumed when he puts himself in a position where he can again do the work at the place where it is to be performed."

In California Casualty Indem. Exch. v. Industrial Acci. Comm., 190 Cal. 433, 213 P. 257, 258, it was held that where the driver of an ice truck was killed while crossing the street from a cigar store just after having obtained lunch at a place where his duties did not call him, the employer permitting him to eat lunch where he desired, the injury did not arise out of his employment so as to warrant an award of compensation. The Court said: "The injury must have its origin in a risk connected with the employment, and must have flowed from that source as a rational and natural course."

In Dreyfus & Co. v. Meade, 142 Va. 567, 129 S.E. 336, it was held that a night watchman, whose place of duty was on the premises of his employer, was not injured in the course of his employment, where he was hit and injured by an automobile on the street, after he had left the premises to go two blocks away for lunch.

In Jack v. Morrow Mfg. Co., 194 A.D. 565, 185 N.Y.S. 588, 590, the Court said: "The deceased was clearly not in the course of his employment when going to his midday meal after leaving the employer's plant or premises."

In Boal v. State Workmen's Ins. Fund, 127 Pa.Super. 237, 193 A. 341, the Court held that an injury received by night janitor with definite hours of employment, but with permission to go home for lunch, while returning to place of employment after having gone home for lunch during hours of employment, was not compensable as having occurred in course of employment. See to same effect Rybitski v. Lebowitz, 175 Pa.Super. 265, 104 A.2d 161.

In Pearce v. Industrial Comm., 299 Ill. 161, 132 N.E. 440, 18 A.L.R. 523, it was held that an injury from a fall upon the sidewalk to an employee in a building, who had gone for supplies for the noonday lunch, in accord with an agreement among certain employees to purchase such supplies, and eat them on the premises of employer, in preference to bringing cold lunches, does not arise out of his employment within the meaning of the Workmen's Compensation Act, S.H.A. ch. 48, § 138.1 et seq.

In Lipinski v. Sutton Sales Co., 220 Mich. 647, 190 N.W. 705, an injury while returning to salesroom after lunch was held not compensable as one arising out of and in the course of employment.

In the following cases it was held that an injury to employee away from employer's premises during lunch hour did not arise out of and in the course of the employment: De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419; California Highway Comm. of Department of Public Works v. Industrial Acci. Comm., 61 Cal. App. 284, 214 P. 658; Layton v. Spear & Co., 261 A.D. 856, 24 N.Y.S.2d 793; Moore v. Sefton Mfg. Corp., 82 Ind.App. 89, 144 N.E. 476; Heffren v. American Medicinal Spirits Corp., 272 Ky. 588, 114 S.W.2d 1115; Ohrmund v. Industrial Comm., 211 Wis. 153, 246 N.W. 589; Pillen v. Workmen's Comp. Bureau, 60 N.D. 465, 235 N.W. 354; Goodyear Tire & Rubber Co. v. Industrial Comm., 100 Utah 8, 110 P.2d 334; Mitchell v. Ball Bros. Co., 97 Ind.App. 642, 186 N.E. 900; McInerney v. Buffalo & S. R. Corp., 225 N.Y. 130, 121 N.E. 806; Furino v. City of Lansing, 293 Mich. 211, 291 N.W. 637.

All the evidence shows that claimant was entirely free to go where he pleased to eat lunch. While going to lunch he was struck and injured on N. C. Highway No. 211 by a car driven along the highway by an employee of the Sandhill Furniture Company, who, at the time, was not on duty. It is perfectly clear from these facts that claimant's duty as a laborer for Sandhill Furniture Company did not require him to be on N. C. Highway No. 211 at the place where the automobile struck him. At the exact time of his injury he was on a personal errand, and was not performing any service to his employer as a laborer. Where claimant should take his lunch, or how he should go there, were not matters in any way incidental to or connected with the character of work for which he was employed. Or to phrase it differently, claimant's exposure to the risks of the highway was voluntary on his part, and was not incidental to the performance of his work, or in any way connected with it, so as to make his presence on the street a part of the duty required of him by reason of his employment. The risk of going to lunch is not a risk incident to the employment, but is a risk incident to the hazards of the street, precisely like those to which the public generally is subjected.

We conclude that upon the record and the entire evidence in the proceeding, the finding and conclusion that claimant did not sustain an injury arising out of and in the course of his employment is supported by the evidence, and that the ruling of the court below in affirming the order of the Full Industrial Commission was correct. No error of law appears upon the face of the record.

Affirmed.

JOHNSON, J., not sitting.