Smith v. CENTRAL TRANSPORT & LIBERTY MUT. INS. , 51 N.C. App. 316 ( 1981 )

276 S.E.2d 751 (1981)

Deloris SMITH, Widow, Charles, Celia Ann, Annette and Henry Smith, Children; Henry Daniel Smith, Deceased
v.
CENTRAL TRANSPORT AND LIBERTY MUTUAL INSURANCE CO.

No. 8010IC584.

Court of Appeals of North Carolina.

April 7, 1981.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James G. Billings, Raleigh, for defendants-appellants.

Marshall, Williams, Gorham & Brawley by Lonnie B. Williams, and Addison Hewlett, Jr., Wilmington, for plaintiffs-appellees.

BECTON, Judge.

Defendant first argues that the Commission erred in finding as a fact and concluding as law that an employer-employee relationship existed. Appellate review of an award of the Industrial Commission is limited to reviewing (1) whether there was competent evidence before the Commission to support its findings; and (2) whether such findings support its legal conclusions. Perry v. Furniture Company, 296 N.C. 88, 249 S.E.2d 397 (1978); McRae v. Wall, 260 N.C. 576, 133 S.E.2d 220 (1963).

The record contains ample evidence of the employer-employee relationship. By way of example, Industrial Commission Form 19 filed by the defendants lists Central as the employer and indicates that the deceased had been employed for eight years working an average of seventy hours per week with an average weekly wage of $350.00. Furthermore, the terms of the contract and the course of conduct between Central and deceased clearly establish the following facts from which the Commission could have concluded that an employee-employer relationship existed: Central had exclusive possession, control and use of the tractor, and its name was permanently affixed to the tractor; the deceased was required to haul solely for Central and was required to return Central's trailer to Central's terminal within a reasonable time; Central operated under an ICC franchise that extended to Mineral in Beltsville, Maryland; deceased, as well as other drivers, was instructed to call Central's dispatcher before returning home to see if Central had anything for them to do on the return trip ("Normally, they would call about 6:00 o'clock p. m. in the evening to determine whether or not we had a trip for [them].... [They would call] from the road or home or wherever they might be."); and Central advertised for trip-lease operators, listing as benefits, workman compensation coverage.

Moreover, the North Carolina Supreme Court has made an exception to the general rule that one who works according to his own judgment, without being subject to control except as to the result of his work, is an independent contractor, in cases involving trip leases under a lessee's ICC authority. Thus, it has been held that the lessor-driver, under a trip-lease agreement with an interstate commerce carrier, is deemed to be an employee of the carrier, for workman's compensation purposes, while operating the equipment under the carrier's ICC authority. Watkins v. Murrow, 253 N.C. 652, 118 S.E.2d 5 (1961); Suggs v. Truck Lines, 253 N.C. 148, 116 S.E.2d 359 (1960); McGill v. Freight, 245 N.C. 469, 96 S.E.2d 267 (1957); Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64 (1950); Brown v. Truck Lines, 227 N.C. 299, 42 S.E.2d 71 (1947). The deceased who was the lessor-driver in this case had a trip-lease agreement with Central, an interstate commerce carrier, and was an employee of Central for workman's compensation purposes.

Having determined that the record contains facts sufficient to support the Commission's finding and conclusion that an employer-employee relationship existed, we turn now to Central's next contention—that the Commission erred in finding and concluding that deceased was in the course and scope of his employment at the time of the accident.

Our courts have held that an accident arises out of 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, indirectly or directly, the employer's business. Martin v. Georgia-Pacific Corp., 5 N.C.App. 37, 167 S.E.2d 790 (1969); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 493 (1968); Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 674 (1964). Our courts have never held that an employee has to be injured while transporting or unloading goods of his employer in order to receive compensation. Indeed, North Carolina has long held as compensable injuries sustained by employees (1) while on the way to or returning from work when the employer provides the means of transportation, Perry v. Bakeries Co., supra; see also Battle v. Electric Co., 15 N.C.App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972); (2) while sleeping in hotels or eating in restaurants away from home, Martin v. Georgia-Pacific Corp., supra; and (3) while awaiting another driver before returning home, Clark v. Burton Lines, supra.

It is true, as Central argues, that the accident in which deceased was killed occurred approximately four and a half hours after he had delivered his load of chemicals, and while he was still in the Washington, D.C. area heading in a direction which would have been opposite to the most direct route back to Wilmington, North Carolina. However, it is abundantly clear from the record (1) that Central operated under an ICC franchise which extended to Mineral Pigments; (2) that it was not unusual for Central's drivers, including deceased, to wait from 8:30 a. m. until 2:00 p. m. before returning home since the drivers were instructed to call Central's dispatcher before returning to see if Central "had anything for them to do coming back;" (3) that Central's drivers customarily rested, showered and cleaned up before starting the return trip home; (4) that Transitruck Center, which is about two miles from Mineral Pigments, provided a restaurant, showers and a lounge for truck drivers; (5) that deceased's truck had a sleeper in it; (6) that it was not unusual for truckers to turn around during trips; (7) that Cabin John Bridge, where the accident occurred, is between Mineral Pigments and Central's office in Wilmington; and (8) that Central owned the trailer pulled by the deceased, and deceased was required to return the trailer to Central in a reasonable time.

Employees whose work entails travel away from the employer's premises are held to be within the course of their employment continuously during the trip except when a distinct departure on a personal errand is shown. Martin v. Georgia-Pacific Corp., supra; Clark v. Burton Lines, supra; Brewer v. Trucking Company, 256 N.C. 175, 123 S.E.2d 608 (1962); Jackson v. Creamery, 202 N.C. 196, 162 S.E. 359 (1932).

In Martin v. Georgia-Pacific Corp., supra, Martin was attending a one-week training program in a distant city. After class, Martin left his hotel to look at some yachts and then proceeded to a steak house for dinner. An automobile veered into a safety island, resulting in Martin's death. The Martin court said:

Martin's death was by accident. The main question presented for decision by defendant's assignments of error is whether the evidence was sufficient to support the finding and conclusion that the injury by accident arose out of and in the course of employment. G.S. 97-2(6). In 1 Larson, Workmen's Compensation Law, § 25.00, p. 443, it is said, "Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable." ... This seems to be the majority rule based upon an analysis of cases from various parts of the United States ....

We are of the opinion and so hold that while Martin was on his way to eat the evening meal, under the circumstances of this case, that he was at a place where he might reasonably be at such time and doing what he, as an employee, might reasonably be expected to do, and that in so doing he was acting in the course of and scope of his employment.

5 N.C.App. at 41-44, 167 S.E.2d at 793-94.

Ordinarily, when an employee operates a vehicle in the course of his employment, an injury from the risks of the road arises out of and in the course of the employment. Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E.2d 476 (1960); Perkins v. Sprott, 207 N.C. 462, 177 S.E. 404 (1934). In this case, the deceased was required to drive his tractor which he leased to Central, pull Central's trailer loaded with chemicals to Maryland, and then return the trailer within a reasonable time. Since his work entailed travel away from the employer's premises, and he was killed while driving for Central, the deceased is held "to be within the course of [his] employment continuously during the trip," 5 N.C.App. at 41, 167 S.E.2d at 793, since a distinct departure on a personal errand was not shown. The Commission's finding and conclusion that deceased was in the course and scope of his employment at the time of the accident is without error.

Defendants next argue that the Commission erred in finding and concluding that the accident was caused by a small white pickup truck pulling in front of deceased and further erred in finding and concluding that deceased's death was not proximately caused by intoxication.

The plaintiffs were not required to offer evidence as to the precise way in which the accident happened. Battle v. Electric Co., supra. Consequently, it is not an essential finding that the accident occurred because of a white pickup truck. However, there is competent evidence in the record in support of the finding. Industrial Commission Form 19 completed by defendants and dated the very day of the accident, while not specifically mentioning white pickup, states that deceased lost control of his tractor-trailer when he "tried to prevent hitting a truck that had cut him off." This account, offered and received in evidence without objection, preceded any investigation by anyone representing the plaintiffs. Moreover, there was evidence from several witnesses who were deposed from which the Commission could have found that a white pickup was involved in the accident.

The plaintiffs were not required to prove that deceased was not intoxicated. G.S. 97-12 placed the burden of defense based upon intoxication upon the defendants to prove intoxication and to prove that death was proximately caused thereby.

Although the Commission found as a fact that deceased had a blood alcohol content of between .14 percent and .16 percent at the time of his death, the Commission found and concluded that death was not proximately caused by intoxication. This Court is bound by that finding. Yates v. Hajoca Corp., 1 N.C.App. 553, 162 S.E.2d 119 (1968). See also Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E.2d 449 (1977); Lassiter v. Chapel Hill, 15 N.C.App. 98, 189 S.E.2d 769 (1972).

We have carefully reviewed defendants' other assignments of error concerning the finding of "borderline intoxication," the admission of hearsay testimony of the witness Dorsey and the Commissioner's abuse of discretion in denying defendants' motion to take further depositions. We find no prejudicial error in those assignments of error. The opinion and award of the North Carolina Industrial Commission is

Affirmed.

MORRIS, C. J., and VAUGHN, J., concur.