Martin v. Bonclarken Assembly

251 S.E.2d 403 (1979)

296 N.C. 540

Luther Y. MARTIN, Father, Edna Martin, Mother of Vincent Keith Martin, Deceased, Employee, Plaintiffs, v. BONCLARKEN ASSEMBLY, Employer, Employers Commercial Union Insurance Co., Carrier, Defendants.

No. 26.

Supreme Court of North Carolina.

February 5, 1979.

*405 George W. Moore, Asheville, for plaintiffs-appellees.

Morris, Golding, Blue & Phillips by James F. Blue and James M. Golding, Asheville, for defendants-appellants.

SHARP, Chief Justice.

The question this appeal presents is whether the evidence before the Industrial Commission is sufficient to support its findings and conclusion that Vincent Martin's accidental death by drowning resulted from an accident arising out of and in the course of his employment. G.S. 97-2(6) (1972); Keller v. Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963); Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950). These two italicized phrases are not synonymous; they "`involve two ideas and impose a double condition, both of which must be satisfied in order to bring a case within the Act.'" Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972).

An injury arises out of employment when it is the result of a condition or risk created by the job. The words "in the course of," as used in G.S. 97-2(6), refer to the time, place and circumstances under which the accident occurred. "An accident arises out of and in the course of the employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business." Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643, 645 (1964). See Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680 (1952); Thorpe, Workmen's Compensation, Survey of North Carolina Case Law; 45 N.C.L.Rev. 983, 992-995 (1967).

Claimants assert that it would be the "natural inclination of a 15-year-old boy after a morning of hard work on a hot day to desire to avail himself of the opportunity to swim in the Assembly lake during his lunch break"; that the "accidental drowning was a hazard or risk of his employment because of the nature of his work [cutting grass] and the availability of [the lake] to the deceased"; and therefore that "deceased's drowning `arose out of his employment because the employment was a condition contributory to his drowning."

Quoting from Watkins v. City of Wilmington, 290 N.C. 276, 283, 225 S.E.2d 577, 582 (1976) (a case factually dissimilar to instant case), claimants argue that "`"where competent proof exists that the employee understood, or had reasonable ground to believe that the act resulting in injury was incidental to his employment, or such as would prove beneficial to his employer's interests or was encouraged by the employer in the performance of the act or similar acts for the purpose of creating a feeling of good will, or authorized so to do by common practice or custom, compensation may be recovered, since then a causal connection between the employment and the accident may be established."`" The difficulty with this argument, however, is that the record contains no evidence which will support its application to the present case. On the contrary, all the evidence negates such an application.

*406 As heretofore noted, the evidence was uncontradicted and tends to show that the supervisor of maintenance, under whom the grass-cutters worked, had specifically authorized them to use only the gym and the tennis courts during nonworking hours. As to swimming in the lake, he said, "that never came up" and he had never given "the boys" instructions either way. Notwithstanding, the rules governing the use of the lake applied to all persons who used the lake, guests and employees alike, and these rules were posted at a place where no one who could read could avoid seeing them. Vincent's twin brother, who ordinarily worked with him every day, testified that he had never been specifically instructed as to these rules, but it was his understanding that the lake was closed while the lifeguard was eating lunch; and that until after 4:30 p. m. swimming was allowed only when the lifeguard was on duty. He testified further that, to his knowledge, prior to the day of Vincent's death he had never gone swimming in the lake. It is significant, we think, that no witness testified he had ever seen Vincent in the lake.

The lifeguard testified that he knew Vincent; that he had seen him at the lake, and had talked to him while he was on duty; that no one who had not taken a swimming test given by the lifeguard was permitted to swim outside the chained-in area, and this regulation was posted on the sign "located near and facing the foot bridge that everybody had to use to get into the lake." The guard also said that "the deceased never did take the swimming test."

From the foregoing recital it is implicit in this evidenceindeed, it will support no other inferencethat when deceased jumped into the deep water of the lake during his lunch hour on 30 July 1974, at a time when the lifeguard was at his lunch, deceased was acting outside the scope of his employment, in contravention of specific instructions from his employer, and that he had no reasonable grounds to believe otherwise. He was engaged in an independent recreational activity, totally unrelated to his work of cutting grass. On the day of his death he was assigned to cut grass in an area at least one-half a mile from the lake. The risk of his drowning during the lunch hour in a lake he was forbidden to enter at that time was a risk foreign to his employment. In short, deceased's accidental drowning was neither a natural and probable consequence nor an incident of his employment; there was no causal relation between his death and the performance of any service calculated to further the business of the Assembly either directly or indirectly. Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964).

As noted in 1A Larson's Workmen's Compensation Law § 21.21(d) (1978) "... there is no magic in being on the [employer's] premises, if the employee is injured by getting into places where he has no right to go." Neither a minor nor an adult claimant can recover under the Workmen's Compensation Act when he "does acts different in kind from what he is expected or required to do, which are forbidden and outside the range of his service." Radtke Bros. v. Industrial Commission, 174 Wis. 212, 217, 183 N.W. 168, 170 (1921). The circumstances of this case preclude the application of the "personal comfort doctrine." See Larson, supra, § 21.

Upon the undisputed facts of this case we hold as a matter of law that the death of Vincent Keith Martin did not arise out of and in the course of his employment. Perry v. Bakeries Co., supra; Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E.2d 93 (1950).

The decision of the Court of Appeals affirming the award of the Industrial Commission is reversed, and this proceeding is returned to that Court for remand to the Commission for the entry of an order in accordance with this opinion denying compensation.

Reversed.

BRITT and BROCK, JJ., took no part in the consideration or decision of this case.