Brown v. Jim Brown's Service Station

262 S.E.2d 700 (1980)

Marsha D. BROWN, Widow and Marsha D. Brown, Guardian ad Litem for Christopher James Brown, Minor Son of James William Brown, Jr., Deceased
v.
JIM BROWN'S SERVICE STATION.

No. 7810IC1013.

Court of Appeals of North Carolina.

February 19, 1980.

West & Groome by Ted G. West, Lenoir, for plaintiffs-appellees.

Moore & Willardson by Larry S. Moore and John S. Willardson, North Wilkesboro, for defendant-appellant.

WEBB, Judge.

Lessie Brown testified that the partnership purchased the CB radio and the deceased was installing it at her direction after working hours. This was done so that decedent could be called by radio to help in the business when he could not be reached by telephone. This evidence supports the finding of fact that "[t]he base station that decedent was installing at his privately-owned residence on 23 January 1976 was intended to become a part of a back-up and emergency communications system for the service station and farming operations." The first question posed by this appeal is whether this finding of fact supports the conclusion that decedent's death, while installing the radio, was an accident arising out of and in the course of employment under G.S. 97-2(6). The words "arising out of and in the course of employment" have been interpreted many times. The phrases "arising out of" and "in the course of" are not synonymous and both must be fulfilled in order for the plaintiff to recover. An accident arises out of employment where any reasonable relationship to the employment and the accident exists or the employment is a contributory cause of the accident. Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E.2d 476 (1960). From the finding of fact that decedent was installing a back-up radio system for his employer when the accident occurred, the Commission was correct in concluding the accident arose out of the decedent's employment.

The phrase "in the course of" employment deals with time, place, and circumstance. All three of the conditions must be fulfilled for the plaintiffs to recover. See Harless v. Flynn, 1 N.C.App. 448, 162 S.E.2d 47 (1968). "Time and place" do not necessarily mean the regular hours of employment and on the premises of the employer. If the employee is doing work at the direction and for the benefit of the employer, the time and place of work are for the benefit of the employer and a part of the employment of the employee. This satisfies the condition of time and place although the work is done off the premises of the employer and after regular working hours. See Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957). In the case sub judice, the decedent was installing the radio at his own residence at the direction of his employer. The employer wanted this radio installed so it would have a back-up communication system for its own benefit. This satisfies the condition of time and place. In respect to "circumstance," compensable accidents are those sustained while the employee is doing what a man so employed may reasonably do within a time he is employed, and at a place where he may reasonably be during the time to do that thing. See Harless v. Flynn, supra. When the decedent was installing the radio in his home at the direction of his employer, he was doing what a man so employed may reasonably do at a time he was employed and at a place where he may have been during the time to do that thing. The condition of circumstance was fulfilled. The Commission was correct in concluding the accident arose out of and in the course of employment.

Defendant next assigns as error the awarding of benefits to be paid by Aetna Casualty and Surety Company on the ground that the policy did not cover the partnership or the accident. The policy contained the following provisions:

"1. NAME OF INSURED AND ADDRESS

JIM BROWN'S SERVICE STATION

JAMES WILLIAM BROWN T/A ELKIN ROAD

NORTH WILKESBORO, N.C. 28659

* * * * * *

4. Classification of Operations

Entries in this item, except as specifically provided elsewhere in this policy, do not modify any of the other provisions of this policy.

* Clerical Office Employees N.O.C.

* Salesmen, Collectors or Messengers—outside

* Drivers, Chauffeurs and their Helpers N.O.C.—commercial (*if not specifically included below)

GASOLINE STATIONS, RETAIL— INCLUDING DRIVERS—AND TIRE RECAPPING SHOP

* * * * * *

AETNA CASUALTY AND SURETY COMPANY

(A stock insurance company, herein called the Company)

Agrees with the Insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declaration and subject to the limits of liability, exclusions, conditions and other terms of this policy:

INSURING AGREEMENTS

I. COVERAGE A—WORKMEN'S COMPENSATION

To pay promptly when due all compensation and other benefits required of the Insured by the workmen's compensation law.

* * * * * *

EXCLUSIONS

This policy does not apply:

(a) under Coverages A and B to operations conducted at or from any workplace not described in item 1 or 4 of the declarations if the Insured has, under the workmen's compensation law, other insurance for such operations or is a qualified self-insurer therefor;

(b) under Coverages A and B unless required by law or described in the declarations, to domestic employment or to farm or agricultural employment;"

Defendant contends that the policy does not cover this claim because it was issued to James William Brown t/a Jim Brown's Service Station and the Deputy Commissioner found as a fact based on the evidence that Jim Brown's Service Station is a partnership. The defendant also argues that the exclusions provide that the policy does not apply to accidents occurring away from the location of the business at Elkin Road, North Wilkesboro, N.C. As to the argument that the policy does not cover the partnership, it is clear that it was written to cover the business operating as Jim Brown's Service Station at Elkin Road, North Wilkesboro, N.C. We hold that it covers the business although it is a partnership. As to the argument that accidents away from the premises are excluded, we hold that this exclusion applies to accidents for which the insured has other insurance coverage. The specific terms of the policy provide that Aetna Casualty and Surety Company will pay all sums which the insured is liable to pay for accidents "by any employee of the Insured arising out of and in the course of his employment . . .." This covers the case sub judice. Defendant relies on Burnett v. Paint Co., 216 N.C. 204, 4 S.E.2d 507 (1939). That case involved the coverage of a workmen's compensation policy. The Court in that case held the plaintiff's injury was not covered by the Workmen's Compensation Act. The workmen's compensation policy did not cover the accident. There was no intimation that the coverage under the policy was not co-extensive with the insured's liability under the Workmen's Compensation Act.

Defendant next assigns as error the finding that the "[d]efendant employer is a partnership. Jim Brown and his wife are the partners." James William Brown and Lessie Brown each testified it was a partnership. This is evidence which supports the court's finding.

The defendant next assigns error to the testimony of decedent's widow. During her testimony, decedent's widow testified she had heard Lessie Brown say the radio would be installed in order to be better able to get in touch with decedent. Defendant contends this testimony should have been excluded as hearsay. Lessie Brown was a partner in the business against which the claim was made. Her statement as to the purpose for installing the radio was admissible evidence as an admission. See 2 Stansbury's N.C. Evidence, § 167 (Brandis rev. 1973).

Defendant also assigns as errors: a statement made by the Deputy Commissioner during the hearing that "[i]t was an oral partnership," the asking of leading questions by plaintiff's counsel, and the examination of the same witness by separate counsel. These assignments of error are overruled.

Affirmed.

MORRIS, C. J., and ROBERT M. MARTIN, J., concur.