Enroughty v. Black Industries, Inc.

185 S.E.2d 597 (1972)

13 N.C. App. 400

Johnny ENROUGHTY, Employee, Plaintiff, v. BLACK INDUSTRIES, INC., Employer, Hartford Accident & Indemnity Company, Carrier, Defendants.

No. 7171C708.

Court of Appeals of North Carolina.

January 12, 1972.

Certiorari Denied March 7, 1972.

*599 Battle, Winslow, Scott & Wiley, P. A., by Samuel S. Woodley and Robert L. Spencer, Rocky Mount, for plaintiff appellee.

*600 Teague, Johnson, Patterson, Dilthey & Clay by I. Edward Johnson, Raleigh, for defendant appellants.

Certiorari Denied by Supreme Court Denied March 7, 1972.

MALLARD, Chief Judge.

The decisive question presented on this appeal is whether the evidence is sufficient to support the finding of fact numbered ten that plaintiff was injured by accident arising out of and in the course of his employment. We hold that the evidence was sufficient to support this finding of fact, the conclusion of law that the plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant employer, and the award entered in this case.

"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." Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957). See also Harless v. Flynn, 1 N.C.App. 448, 162 S.E.2d 47 (1968).

Whether an injury by accident arises out of or in the course of the employment is a mixed question of law and fact. Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E.2d 476 (1960). This court is bound by the nonjurisdictional findings of fact of the Commission, if there is competent evidence to support such findings, but is not bound by its conclusions of law. Priddy v. Blue Bird Cab Co., 9 N.C.App. 291, 176 S.E.2d 26 (1970).

The rule that traveling to and from work on a conveyance furnished by the employer is in the course of employment is applicable to trips to and from lunch. 1 Larson, Workmen's Compensation Law, § 15.52. See also Martin v. Georgia-Pacific Corp., 5 N.C.App. 37, 167 S.E.2d 790 (1969).

"Injuries sustained by an employee while being transported to or from work in a conveyance furnished by his employer pursuant to an express or implied term of the contract of employment are compensable." (Emphasis added.) 99 C.J.S. Workmen's Compensation § 235, p. 840. See also Mion v. Atlantic Marble & Tile Co., Inc., 217 N.C. 743, 9 S.E.2d 501 (1940).

Black had a contract with Carolina to do the work in which the plaintiff was engaged. Black furnished its plow crew the means of transportation to and from the work site because their work was not at a fixed price. Whittington v. Schnierson & Sons, 255 N.C. 724, 122 S.E.2d 724 (1961). It was customary for the foreman to fix the length of time for lunch and to designate where Black's truck was to take them during lunch hour, usually to a country store or a cafe chosen by the employees. It was also customary for those who did not wish to ride on Black's truck to lunch either to remain at the site of the job or to ride on Carolina's truck with Black's foreman and Carolina's inspector. On the date in question, Carolina's inspector invited Black's foreman to ride with him, and Black's foreman invited plaintiff to accompany them. If this alternate means of transportation (on Carolina's truck) was furnished by Black, the employer, then Black is liable.

We hold that the evidence in this case was sufficient for the Commission to find that the transportation to lunch on the Carolina truck had become available, by custom, to Black's employees on the plow crew when the site was being visited by Carolina's inspector (99 C.J.S. Workmen's Compensation § 235); that the Carolina truck ride to lunch was furnished by Black to its employees on the plow crew under the terms of the employment; and that the plaintiff became entitled to the use of the Carolina truck at the invitation of his foreman, as an alternate means of transportation provided by his employer.

We hold, therefore, that there was sufficient competent evidence before the Commission to support its findings of fact, and that its conclusions of law and award in this case were proper. See Hardy v. Small, supra; Brewer v. Powers Trucking Co., 256 *601 N.C. 175, 123 S.E.2d 608 (1962); Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540 (1939); Edwards v. T. A. Loving Co., 203 N.C. 189, 165 S.E. 356 (1932); Dependents of Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147 (1930); Martin v. Georgia-Pacific Corp., supra; Williams v. Brunswick County Board of Education, 1 N.C.App. 89, 160 S.E.2d 102 (1968); 1 Larson, Workmen's Compensation Law, § 25:00.

No prejudicial error is made to appear in appellant's assignments of error, and the award of compensation herein is affirmed.

Affirmed.

HEDRICK and GRAHAM, JJ., concur.