Ridout v. . Rose's Stores, Inc. , 205 N.C. 423 ( 1933 )

These actions, consolidated by consent, are founded upon claims for death filed for the plaintiffs before the North Carolina Industrial Commission.

Clarence B. Ridout and William Dement were employees of Rose's 5-10-25¢ Stores — the former manager, the latter assistant manager of the store at Morehead City. On Sunday, 20 December, 1931, these young men made a trip from Morehead City to Henderson in a car owned by William Dement. Rose's Stores had a warehouse in Henderson, from which all its branch stores were supplied. After their arrival at Henderson Ridout had dinner with the manager of the warehouse and Dement called to see a young lady. In the afternoon Ridout and the manager walked to the warehouse, got certain goods, put them in the car, and the young men started on their return trip. Near Raleigh the car in which they were traveling was struck by another going in the opposite direction and both young men were killed.

After taking and considering the evidence in reference to the respective claims Matt II. Allen, chairman of the Industrial Commission, made a formal award denying compensation. Among other facts he found the following: Ridout had formerly lived in Henderson and had worked with the defendant company in its warehouse. Dement was to be married to a young lady residing in Henderson, whom he had visited each week-end for several months prior to the Sunday before the accident. On Sunday, 20 December, Ridout obtained from the warehouse articles of merchandise, which were put in the car. Both young men were employed and paid by the week and neither of them was charged with any duties or responsibilities in connection with the work between the time the store was closed on Saturday night and the time it was opened on Monday morning, and neither of them was under the supervision or control of the company during this period. The employer did not require the use of an automobile by the employees in the performance of their duties and did not provide for them either a car or gasoline for this or any other trip.

The award includes the following specific findings:

"1. C. B. Ridout, deceased, manager of the defendant company's store at Morehead City, N.C. and W. D. Dement, deceased, assistant manager of the defendant company's store at Morehead City, left Morehead City on Sunday morning, 20 December, at 3:30 o'clock, for Henderson, N.C. primarily for personal social reasons and not by force of any duty of employment expressed or implied.

2. While in Henderson, N.C. on Sunday, 20 December, they procured from the warehouse of the defendant articles of merchandise valued at $65.00, which they intended to use in the store of the defendant in Morehead City, N.C.

3. The procuring of the goods was incidental to the trip.

4. The accident and injury resulting in the death of Ridout and Dement did not arise out of or in the course of their employment.

5. At the time of the accident and death the goods procured from the warehouse in Henderson, N.C. were in the automobile which belonged to Dement."

The claimants appealed from the award of the commissioner to the full Commission who affirmed the award, and from the full Commission to the Superior Court in which the award was again affirmed. The claimants excepted and appealed. The Workmen's Compensation Law defines "injury" and "personal injury" as injury by accident arising out of and in the course of the employment — the words "out of" referring to the origin or cause of the accident and the words "in the course of" to the time, place and circumstances under which the accident occurred. Compensation Law, sec. 2(f); Conrad v. FoundryCo., 198 N.C. 723. Whether the accident complained of arose out of and in the course of the employment is a mixed question of law and fact (Harden v.Furniture Co., 199 N.C. 733); but the facts as found by the Commission, when supported by competent evidence, are "conclusive and binding" on the appellate courts. Compensation Law, sec. 60; Bryson v. Lumber Co.,204 N.C. 664; Johnson v. Bagging Co., 203 N.C. 579; Wimbish v.Detective Co., 202 N.C. 800.

The Industrial Commission found from the conflicting evidence that the death of the employees occurred while they were engaged in an adventure primarily for personal and social reasons and not in the performance of any duty expressly or impliedly connected with their employment, and that their receipt of the goods was incidental to the trip. It is obvious that from Saturday night until Monday morning the relation of employer and employee was suspended, and that there was no causal relation between the employment and the accident. Canter v. Board of Education, 201 N.C. 836; Dependentsof Phifer v. Dairy, 200 N.C. 65. It follows that the death of the employees did not arise out of and in the course of their employment. Judgment

Affirmed.