Hardy v. Small
| Decision Date | 18 September 1957 |
| Docket Number | No. 26,26 |
| Citation | 99 S.E.2d 862,246 N.C. 581 |
| Parties | John H. HARDY, Father, Essie Hardy, Mother, William H. Hardy, Deceased, v. Marie J. SMALL, Adm'x of Estate of Claude E. Small (Employer); Nationwide Insurance Company (Carrier). |
| Court | North Carolina Supreme Court |
John W. Graham, Edenton, for plaintiffs, appellees.
Teague, Johnson & Patterson, Raleigh, for defendants, appellants.
The findings of fact, amply supported by competent evidence, establish, inter alia, that the deceased was an employee. Defendants' contention that this thirteen year old boy was an independent contractor in respect of the farm chores assigned to him when fatally injured is without merit. It is clear that the employer had the right to direct him in his work and to discharge him with or without cause. It is unnecessary to restate the factors that distinguish an independent contractor from an employee. McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, and cases cited.
Defendants' primary position is that, upon said findings of fact, the court was in error in its conclusion that the employee's death was by accident arising out of and in the course of his employment.
Whether an injury by accident arises out of and in the course of the employment is a mixed question of law and of fact. Horn v. Sandhill Furniture Co., 245 N.C. 173, 176, 95 S.E.2d 521, and cases cited.
Decision on this appeal turns on whether the specific findings of fact, considered in the light most favorable to plaintiffs, afford a sufficient factual basis for the determination that the employee's death was by accident arising out of and in the course of his employment. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596.
The basic rule is that the words 'out of' refer to the origin or cause of the accident, and that the words 'in the course of' refer to the time, place and circumstances under which it occurred. Conrad v. CookLewis Foundry Co., 198 N.C. 723, 153 S.E. 266; Alford v. Quality Chevrolet Co., 246 N.C. 214, 217, 97 S.E.2d 869.
The question presented is one of first impression in this jurisdiction. Here the farm employee, who lived on the farm, sustained an injury by accident when returning from the barn, to which he had gone to feed the livestock, to the area of the house in which he lived.
An injury does not arise out of and in the course of the employment unless it is fairly traceable to the employment as a contributing proximate cause. Hence, injury by accident is not compensable if it results from a hazard to which the public generally is subject. Walker v.J.D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89; Marsh v. Bennett College, 212 N.C. 662, 194 S.E. 303, tornado cases; Plemmons v. White's Service Inc., 213 N.C. 148, 195 S.E. 370, mad dog case.
In early cases in other jurisdictions, compensation was generally denied where the injury occurred upon a public street or highway on the ground that the hazard to which the employee was exposed was not peculiar to the employment but a risk common to all persons using the public street or highway. Annotation: 51 A.L.R. 509. In later decisions, injury on a public street or highway is generally held compensable if at the time the employee is acting in the course of his employment. Annotation: 80 A.L.R. 126, and supplemental decisions; 58 Am.Jur., Workmen's Compensation, sec. 226.
It is established in this jurisdiction that an injury caused by a highway accident is compensable if the employee at the time of the accident is acting in the course of his employment and in the performance of some duty incident thereto. Massey v. Board of Education, 204 N.C. 193, 167 S.E. 695; Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Guest v. Brenner Iron & Metal Co., supra.
Ordinarily, the rule is that an injury by accident is not compensable if sustained by the employee while on his way to or returning from the premises where the work of his employment is performed. Hunt v. State, 201 N.C. 707, 161 S.E.203; Bray v. W.H. Weatherly & Co., 203 N.C. 160, 165 S.E. 332; Lassiter v. Carolina Telephone Co., 215 N.C. 227, 1 S.E.2d 542; McKenzie v. City of Gastonia, 222 N.C. 328, 23 S.E.2d 712; Bryan v.T.A. Loving Co., 222 N.C. 724, 24 S.E.2d 751. Such an injury is compensable when it is established that the employer, as an incident of the contract of employment, provides the means of transportation to and from the place where the work of the employment is performed. Dependents of Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147; Edwards v.T.A. Loving Co., 203 N.C. 189, 165 S.E. 356; Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540.
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