Humphrey v. Quality Cleaners and Laundry , 251 N.C. 47 ( 1959 )

110 S.E.2d 467 (1959) 251 N.C. 47

Mr. and Mrs. H. Linza HUMPHREY, Parents and Next of Kin of Henry Allen Humphrey, deceased,
v.
QUALITY CLEANERS AND LAUNDRY and the Fidelity and Guaranty Company of New York.

No. 174.

Supreme Court of North Carolina.

October 14, 1959.

Ellis, Warlick & Godwin, Jacksonville, for plaintiffs.

Teague, Johnson & Patterson, Raleigh, for defendants.

DENNY, Justice.

The sole question for determination on this appeal is whether or not the accident which caused the death of Henry Allen Humphrey arose out of and in the course of his employment.

Ordinarily, an injury suffered by an employee while going to or returning from the place where he is employed, does not arise out of and in the course of his employment. Bray v. W. H. Weatherly & Co., 203 N.C, 160, 165 S.E. 332; 94 A.L.R. 589; Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540; McLamb v. Beasley, 218 N.C. 308, 11 S.E.2d 283; Bryan v. T. A. Loving Co. & Associates, 222 N.C. 724, 24 S.E.2d 751; Ellis v. American Service Co., Inc., 240 N. C. 453, 82 S.E.2d 419, 421.

In the last-cited case, Bobbitt, J., speaking for the Court, said: "An employee is not engaged in the prosecution of his employer's business while operating his personal car to the place where he is to perform the duties of his employment, Wilkie v. Stancil, supra (196 N.C. 794, 147 S.E. 296), nor while leaving his place of employment to go to his home, Rogers v. Carolina Garage, Inc., 236 N.C. 525, 73 S.E.2d 318."

The appellants cite and rely upon the cases of Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Massey v. Board of Education, 204 N.C. 193, 167 S.E. 695; and 99 C.J.S. Workmen's Compensation §§ 232 and 236.

In our opinion, the facts in each of the foregoing cases are distinguishable from the facts in the case now before us and are therefore not controlling.

In 99 C.J.S. Workmen's Compensation § 232, p. 815, it is stated: "* * * it is held that injuries which occur to an employee while going to or from work may be compensable where it appears that at the time of such injuries he is engaged in doing an act, or performing a duty, which he is definitely charged with doing as a part of his contract of service or under the express or implied direction of his employer, * *."

In § 236 of the above authority, at page 846, it is said: "Moreover, the fact that the employee furnishes his own conveyance will not defeat his right to compensation for injuries sustained while going to or from work where the employee, while so doing, is engaged in the business of the employer, or is on a mission for the employer, or is engaged in performing his duties, * *." However, in another portion of § 232, preceding that quoted above, beginning at page 807, we find the following statement: "It is laid down as a general rule, known as the `going and coming' rule, that, in the absence of special circumstances, and except in certain unusual circumstances, and where nothing else appears, harm or injury sustained by an employee while going to or from his work is not compensable. Such an injury, or accident, is regarded by the weight of authority of many courts as not arising out of his employment, and as not being, or not occurring, in the course thereof."

The hearing Commissioner found as a fact that Henry Allen Humphrey was performing no services for his employer at the time of his accident, "but was on his way to work on his personal car; that none of the expenses of the trip were being borne by the employer; that the transportation of the employer's cash box and of the * * * clothing was merely incidental to the trip and not in the performance of any express or implied duty connected with the employment." This finding of fact is supported by competent evidence and is binding on us. Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173; Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109; Withers v. Black, 230 N.C. 428, 53 S.E.2d 668; Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612; Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97.

In the case of Ridout v. Rose's 5-10-25c Stores, Inc., 205 N.C. 423, 171 S.E. 642, 643, Clarence B. Ridout and William Dement were employees of Rose's 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 at 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 car going in the opposite direction and both young men were killed.

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. This Court said that the facts as found by the Commission, when supported by competent evidence, are "`conclusive and binding' on the appellate courts." And further said, "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."

In Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 182, a plumber's helper, who was going to drive to a neighboring town to meet his wife, was asked by his employer to fix some faucets there—a trifling job which in itself would not have occasioned the trip. While on his way to this town, he was injured in a wreck and died. On the identical question now before us, Cardozo, C. J., speaking for the Court, said: "If word had come to him before starting that the defective faucets were in order, he would have made the journey just the same. If word had come, on the other hand, that his wife had already returned, he would not have made the trip at all. * * * In such circumstances we think the perils of the highway were unrelated to the service. We do not say that the service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. * * * The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time come purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel was then personal, and personal the risk."

In the instant case, there is no evidence to support the view that the defendant Laundry would have made any arrangements to have laundry or dry cleaning picked up in the vicinity where the deceased employee lived had he not brought it in, or that he was under any express or implied obligation to his employer to solicit laundry or dry cleaning in his home community. On the other hand, it is obvious that Henry Allen Humphrey would have undertaken the trip from his home to Jacksonville on the morning of his accident, irrespective of the presence of the dry cleaning in his car that day.

The judgment of the court below is

Affirmed.

HIGGINS, J., not sitting.