Jackson v. Dairymen's Creamery & Independence Indemnity Co. , 202 N.C. 196 ( 1932 )

OlaeksoN, J.

The questions involved: (1) Did the accident in this action arise out of and in the course of the plaintiff’s employment? We think so. (2) Is there any evidence from which the Commission could find that the injury was occasioned by the intoxication of the plaintiff ? We think not.

We think there was sufficient competent evidence to sustain the findings of fact “that on 13 September, 1930, he (plaintiff) sustained an accident and injury which arose out of and in the course of his employment.” Public Laws 1929, chap. 120, known as the “N. C. Workmen’s Compensation Act,” sec. 2(f). “The findings of fact by the Industrial Commission in a hearing before them is conclusive upon appeal when there is sufficient competent evidence to sustain the award.” Williams v. Thompson, 200 N. C., at p. 465.

The evidence was to the effect that plaintiff was in the employ of the defendant, Dairymen’s Creamery, that had its place of business just outside of Asheville. Plaintiff every night, usually about seven o’clock, left his truck in the back yard of the creamery, where he lived about 50 feet from the creamery. There was a “milk war” on in Asheville, price cutting, etc., customers were changing due to lower prices.

Plaintiff testified, in part: “I was employed by the Dairymen’s Creamery. I was delivering milk to cafes and stores and hospitals and had charge of what is known as a 'milk route.’ I was supposed to get up and get to town by six or six-thirty. I generally loaded up about five-thirty. That is what I did on the 13th. ... I went back the third time and got some more milk. I don’t know about what time it was I left the plant the third time. I had no watch. I guess about eight o’clock. It was between sundown and dark when I got the last order. I gave it to the Broadway Cafe. ... I weñt to Rogers Cafe and ate supper and then I went and got a hair cut, shave and shoe shine in the Square Barber Shop, and then I went to Chase Street and finished collecting-on a bill. That was after supper. I talked to several of my customers and then went back to the cafe. ... I parked my truck in front of Rogers Cafe. It was there probably an hour or two, maybe two hours. Q. What I want to know is, during that two hours you were engaged in eating supper and getting a hair cut and attending to these collections, did that take the entire two hours your truck was parked? A. It did, and talking to those fellows and spending time with them. I did not take any time during that time to go out on any pleasure expedition of my own. ... I might have shot one game of pool or two games or something like that the night I was hurt. I can’t say positively how many games I did shoot. I may have gone in there and shot one game. I think it was one or maybe two games. That was after supper. . . . I was not in there very long, just a few minutes. That was after I had attended to all my collections and stuff, after I got through. I was through with everything. I got through with my collections around ten or eleven o’clock. . . . When my people employed me, they employed me to get all the business I could and gave me orders to hold every customer I could regardless of how I could hold them until milk came down right away. They said to hold them from day to day until milk came back down and not to let them quit, but to tell them they would make it right with them. ... I didn’t use my truck from that time until I started back and bad the wreck. It was parked all the time from then until I started back borne. It was between nine and ten o’clock when I made my delivery to the Broadway Oafe. ... It was between seven and eight o’clock, somewhere along there when I left town to go back there. I went out there and got the milk and came to town. ... I have a five-year certified statement for driving without an accident.”

Plaintiff, when he took the truck where it was parked and started home to the plant on Craggy Eoad, went a direct route. He testified further: “It was about eleven o’clock that I was hurt. I met a car. It was kind of foggy and the light glared in my face and blinded me. I cut out on the side of the road and whenever the car passed by I was blinded and cut back to the left and I cut too far and when I hit the edge of the curb the lights shone up and I could see I was too far on the left-hand side. I cut back to the right and the steering wheel turned over. One of the cross-arms on the steering wheel had been broken several weeks and whenever I cut it back the other way the other one came out. I had it come out once before then. It had come out and turned over one time before, running slow. The wheel turned over and bent like that. I had no control over it and it shot across the road. Whenever I hit the curb my steering wheel turned and I turned back into the road as I turned it to the right. The arm was broken off the left side and had been wrapped with tape. I had complained of it. When it was first taped Mr. Mason wrapped it and said, he would try to get one right away. It was too light a steering wheel -for that heavy a truck.”

Defendants introduced George Netherton, who testified, in part, that he was bookkeeper for the defendant creamery at the time of the injury to plaintiff. “He is supposed to get' off from work as soon as he gets through. He has no regular time. His time is not limited. He is supposed to take care of his customers regardless of what time it is. I don’t think he would be supposed to work all night. His employment has no limit. . . . We had a hard time holding our customers at that time, and it was part of his duties to interview and hold customers.”

Defendants introduced E. H. Mason, manager of defendant’s creamery and directly in charge of plaintiff, who testified, in part: “He came to work about six o’clock in the morning. He got his morning deliveries and worked his trade. He was responsible for his collections and for building up his route and keeping it up. . . . Generally speaking, he was off around seven o’clock. There were times when he worked later than that. All the trucks had to be in the yard when a man finished his work. It is the drivers’ business to solicit new business, and some business was solicited at night, some in the day time. Some cafes were busy, and he could do more with them at night. . . . There were no stated hours. . . . It is customary for our delivery men to keep trucks out after working hours while they are calling on our customers and making collections. It has happened that our drivers brought our trucks in sometimes at very late hours for that reason. No special permission was given Jackson to keep the truck out at night if he was calling on trade in the interest of our business, but it was taken for granted. That practice had our sanction. Ordinarily the trucks were in around seven o’clock. At that time, however, there was quite a bit of price cutting with regard to the sale of milk, and customers were changing due to the lower prices and there was a hard drive maintained at that time in order to keep the customers we had and gain some more. The steering wheel had been broken. A portion of it was broken and had been taped up.”

From Parrish v. Armour & Co., 200 N. C., at p. 660, we again quote Pollock on Torts, 6th ed., at p. 84,'as follows: “Whether the servant is really bent on his master’s affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master’s responsibility. But where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be An a frolic of his own,’ the master is no longer answerable for the servant’s conduct.”

The plaintiff had parked his.truck in front of Rogers Cafe, some one or two hours before the injury. He had been on duty from 5 :30 o’clock until after his regular hours, to hold his employers’ business. His was not “eye service” during the milh war. “Servants, obey in all things your masters according to the flesh; not with eye service, as men-pleasers; but in singleness of heart, fearing God.” Colossians 3 :22. After being on duty some fifteen hours, he parked his truck in front of the cafe, no doubt hungry from his arduous duties, and went into the cafe and ate supper; then he got a hair cut, shave and shoe shine, collected a bill, talked to several customers, played a game of pool — all these took an hour or two — and then got in the truck and started home. Plaintiff is not a machine, in daily tasks human needs must be considered and recognized. He was not injured during the hour or two in which the truck was parked, but when in the truck going to his home and where tbe truck was kept. We cannot bold, under tbe facts and circumstances of tbis case, tbat during tbe interim, for tbe purposes above mentioned, there was sucb a total departure from tbe course of tbe master’s business tbat would bar recovery. Parrish v. Armour, supra, at p. 654; Bellamy v. Mfg. Co., 200 N. C., 678.

In 'Willis’ Workmen’s Compensation (27tb ed.), at p. 29, we find: “In giving judgment in Benson v. Lancashire and Yorkshire Rail Co. (1904), 1 K. B., 242; 6 W. C. C., 20, Mathew, L. J., said (at p. 251): ‘I do not tbink tbat tbe protection given by tbe act can be confined to tbe time during wbicb a workman is actually engaged in manual labor, and that be would not be protected during tbe intervals of leisure wbicb may occur in tbe course of bis daily employment. A workman is not a machine, and must be treated as likely to act as workmen ordinarily would during sucb intervals; and, as regards any reasonable use wbicb, while on tbe employer’s premises, be may make of moments when be is not actually working, I must not be supposed to say tbat be would be thereby deprived of tbe protection of tbe act.’ . . . Where bis actual work is finished but tbe workman is waiting for bis pay (Mayor v. Leyland (1920), 13 B. W. C. C., 115). So, when a drayman’s employment kept him about tbe streets without any regular intervals for meals, it was held to be incidental to bis employment tbat be should leave bis dray during tbe course of tbe day for tbe purpose of obtaining reasonable refreshment. (Martin v. Lovibond (1914), 2 K. B., 227; 7 B. W. C. C., 243). . . . (At p. 77): If during meal-times or other intervals, tbe workman remains on tbe employer’s premises under sucb circumstances tbat be continues in tbe course of bis employment, . . . tbe risks of so doing, for example, locality risks, ... or risks arising from reasonable acts . . . are risks incidental to his employment.”

Tbe cases cited in tbe opinion of tbe Industrial Commission are in accordance with tbe position here taken. Kohlman v. Hyland, 54 N. D., 710, 210 N. W., 643, is annotated in 50 A. L. R., 1437.

As to tbe second exception and assignment of error, there is no evidence on tbe record to sustain tbe contention tbat plaintiff was intoxicated when be was injured. There is evidence that be bought a bottle of liquor on bis way borne, but be did not drink any of it and it was broken when tbe accident occurred. He is guilty of buying and possessing liquor, contrary to tbe statute (3 C. S., see. 3411(b), but we cannot see bow tbat would deprive plaintiff of a recovery in this action for bis serious injuries. His injuries consisted of two broken legs, a stab wound in tbe back and minor bruises, also cuts over tbe body. Tbe judgment below is

Affirmed.