Franklin v. Wilson County Bd. of Ed.

224 S.E.2d 657 (1976)

29 N.C. App. 491

James Prentice FRANKLIN, Jr., widower, and James Prentice Franklin, Jr., guardian ad litem of James Prentice Franklin, III, minor child of Shelley Harris Franklin, Deceased Employee, Plaintiffs, v. WILSON COUNTY BOARD OF EDUCATION, Employer Self-Insurer, Defendant.

No. 757IC910.

Court of Appeals of North Carolina.

May 19, 1976.

*659 White, Allen, Hooten & Hines by John R. Hooten, Kinston, for plaintiff-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Ralf F. Haskell, Raleigh, for defendant-appellee.

HEDRICK, Judge.

The one question presented on this appeal is whether the Industrial Commission erred in finding and concluding that Shelley Harris Franklin's injuries and death did not arise out of and in the course of her employment as a home economics teacher for the defendant.

To be awarded compensation under the Workmen's Compensation Act, the plaintiff has the burden of showing that deceased's injury and resulting death were the result of an accident which arose out of and in the course of deceased's employment. G.S. 97-2; Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

Recognizing that ordinarily an employee's injuries or death resulting by accident going to or returning from work do not arise out of and in the course of one's employment and are not compensable, Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959), plaintiff, citing numerous cases, contends that his case falls within one of the recognized "exceptions" to the general rule. Neither the "coming or going rule" nor any of the "exceptions" to the *660 rule has any application in this case simply because there is no evidence in this record as to where the deceased was going when she backed her Volkswagen onto the highway from the parking area at Saratoga Central High School. When we say that there is no evidence as to where the deceased was going, we are also saying that there is no evidence in this record that the deceased was performing one of the duties of her employment at the time of the accident. Evidence and findings that deceased was required as part of her duties to visit her students in their homes after school hours to check on their projects and observe their home backgrounds, and that she was also required from time to time to purchase incidental supplies at retail stores for use in her class, and that she was reimbursed for her expenditures and received a travel allowance to cover, in part, the visits to the homes and to stores to buy supplies, and that there was no set schedule for deceased to perform these duties, presents nothing more than a scenario of what deceased might do on any given day. Such evidence, under the circumstances of this case, is not sufficient to support a finding by the Commission that the deceased was performing one of the duties of her employment at the time of the accident. The material findings of fact made by the Commission support the conclusion that Mrs. Franklin's death by accident did not arise out of and in the course of her employment. The order appealed from is affirmed.

Affirmed.

MORRIS and ARNOLD, JJ., concur.