Bray v. W. H. Weatherly & Co

• Decision Date: 14 September 1932
• Docket Number: No. 13.,13.
• Citation: 165 S.E. 332,203 N.C. 160
• Court: North Carolina Supreme Court
• Parties: BRAY. v. W. H. WEATHERLY & CO. et al.

203 N.C. 160

165 S.E. 332

BRAY.

v.W. H. WEATHERLY & CO. et al.

No. 13.

Supreme Court of North Carolina.

Sept. 14, 1932.

Appeal from Superior Court, Pasquotank County; Daniels, Judge.

Proceedings under the Workmen's Compensation Act by George W. Bray, claimant, against W. H. Weatherly & Company, employer, and the Liberty Mutual Insurance Company, insurer. From a judgment affirming an order of the Industrial Commission denying compensation, the claimant appeals.

Affirmed.

This is a proceeding begun before the North Carolina Industrial Commission and heard on appeal to the superior court from an order of the full commission made on September 21, 1931, affirming an order of T. A. Wilson, commissioner, denying compensation.

The plaintiff was a truck driver in the employ of W. H. Weatherly & Co., who were engaged in the wholesale grocery business in Elizabeth City. His home was on East Cypress street in the northern part of the city, and the truck was kept at night in a garage at Weatherly's residence on Riverside avenue, in the southern part of the city. The store is on Water street, between these two places, and in going to the garage, the plaintiff usually passed the store. It was his custom to ride to the garage on his bicycle; to "report at Mr. Weatherly's, " that is, "just to go and get the truck"; to drive it to the store about 7 o'clock in the morning and at the close of the day's work to take it back to the garage, going home on the bicycle, which meanwhile had been left at Weatherly's. He testified: "I report at Mr. Weatherly's every morning and get the truck and then go back to the store. The truck is kept at the residence. I suppose it is nearly a mile from the store."

In the early morning of March 25, 1931, the plaintiff started from home to the garage on his bicycle. He had passed the store without stopping there, but had not arrived at the garage, when an automobile coming from an intersecting street struck the bicycie and injured the plaintiff, who was thereby disabled for two weeks. He could have gone to the garage without passing the store. He brought this proceeding for compensation under the Workmen's Compensation Act (Code 1931, $ 8081 (h) et seq.) against the employer and the Liberty Mutual Insurance Company, carrier, and compensation was denied. On appeal to the superior court, the judgment of the full commission was affirmed. The plaintiff then appealed to the Supreme Court.

Thompson & Wilson, of Elizabeth City, for appellant.

Smith & Joyner and John H. Anderson, Jr., all of Raleigh, for appellees.

ADAMS, J.

The statement of facts is derived from the admission of the parties and the testimony of the plaintiff, the only witness examined at the hearing. The determinative facts are therefore admitted. The plaintiff was employed to drive a truck. His service in this capacity indicated his sole relation to the business of his employer. His "reporting" at Weatherly's garage he explained to be the mere act of going there and getting the truck. He stored his bicycle at the garage and drove the truck to the store; when the day's work...