Bryan v. T.A. Loving Co. & Associates

• Decision Date: 24 March 1943
• Docket Number: 305.
• Citation: 24 S.E.2d 751,222 N.C. 724
• Parties: BRYAN v. T.A. LOVING CO. & ASSOCIATES et al.
• Court: North Carolina Supreme Court

24 S.E.2d 751

222 N.C. 724

BRYAN v. T.A. LOVING CO. & ASSOCIATES et al.

No. 305.

Supreme Court of North Carolina

March 24, 1943

Claim for compensation under the Workmen's Compensation Act.

The defendant employer was the construction contractor at Cherry Point Marine Base. The government property is enclosed by a fence which is located about 1 foot inside the property line. In part, this fence parallels Highway #101. It has a number of entrance gates. Gate #2 faces Highway #101 and is the entrance to the administration office buildings used by the employees, salesmen and others having business at the offices. A small house, 6 X 6, was just outside the gate for use of the guard during bad weather. Deceased was a civilian (not an official) guard and was stationed at gate #2, his hours being from 6 A.M. to 2 P.M. His duties were to prevent parking of cars on the outside of the fence, to direct motorists who desired to stop to the lot on the inside used as a parking lot, to guard against entry of unauthorized persons and to regulate and direct automobile traffic through the gate. In regulating such traffic he, at times, assisted the State patrolman and at rush periods during shifts he would stop traffic on the highway so as to permit those leaving the premises through gate #2 to do so more rapidly and conveniently. This was done under the direction of the employer and not by virtue of any police power vested in him. While he wore a "special officer" badge he was not an officer of the law.

On the day of his injury, a few minutes before 6 A.M., he was on his way to his work. He rode to a point in front of gate #2 on a bus. The bus stopped on the shoulder of the road opposite the gate. Deceased alighted and as the bus moved off he started across the public road toward gate #2 where it was his duty then to relieve the night watchman on guard. Just as he passed from behind the bus there was another car about even with the back of it going in the opposite direction. Deceased "kind of hesitated just a moment like he kind of saw the car. All at once he shot out presuming he could make it." He was struck by the car and thrown to the side of the road. He died from the injuries received before reaching the hospital.

Deceased was not required to formally "check in" when he reported for work each morning. The gate was locked at night and the night guard remained on the inside. When the deceased arrived the night guard unlocked and opened the gate, gave the key to deceased and left, being relieved by deceased. This was the only form of "check in" and "check out" that was used. At the time of the injury the night watchman was unlocking and opening the gate. He intended, but had not had time, to deliver the key to the deceased.

In addition to the foregoing facts which appear from the evidence and the findings of the hearing commissioner the hearing commissioner found the following:

"F. That the defendant employer was a contractor doing construction work on the property owned by the Federal Government; that said defendant employer neither owned the property on which he was doing construction work nor owned the property and right of way of the highway immediately in front of gate #2, but that the defendant employer customarily used the property owned by the Federal Government within the limitations required by his construction work as if it were his own premises, and that the defendant employer customarily used that portion of the highway and highway right of way immediately in front of gate #2 within reasonable limitations for the proper traffic regulations as if it were his own premises. Therefore, the Commission specifically finds as a fact that for the purposes of the provisions of the Workmen's Compensation Act the plaintiff's deceased was on the premises of the defendant employer at the time he sustained his injury by accident which resulted in his death.

"G. Upon the evidence that more than 90% of the traffic on the highway in front of gate #2 was composed of the employees of the defendant employer and other workmen who were erecting the Marine Base, together with the evidence that the plaintiff's deceased was a civilian guard employed as a traffic policeman, the Commission specifically finds as a fact that the deceased employee was subjected to an extraordinary and a greater hazard of being injured or being struck by an automobile than that to which the public generally was subjected or that was common to the neighborhood.

"H. The Commission further specifically finds as a fact that the injury by accident which plaintiff's deceased sustained on April 20th., 1942, and which resulted in his death, arose both out of and in the course of his employment with the defendant employer. The reasons for this Finding of Fact will be fully discussed in the Conclusions of Law hereinafter made."

The hearing commissioner, after making his conclusions of law on the facts found, awarded compensation and the defendants appealed to the full Commission. The full Commission affirmed and the defendants appealed.

When the cause came on for hearing in the court below the award of the Industrial Commission was affirmed and defendants appealed.

Lawrence A. Stith, of New Bern, for appellants.

R.E Whitehurst, of New Bern, for appellee.

BARNHILL Justice.

The hearing commissioner, through a very interesting and persuasive process of reasoning, comes to the conclusion that the deceased was for all practical purposes on the premises of his employer; that his employment involved unusual risks and that, therefore, the injury arose out of and in the course of the employment. The full Commission supplements this conclusion by finding that he was in the ambit of his employment and affirms. Thus, it affirmatively appears that the award was not made upon the theory that the deceased had begun his employment for the day or was actually engaged in the performance of any duty of his employment, or was about his master's business at the time of the injury. Instead it is based upon the theory that he was on the premises of his employer at the time or was in such close proximity to such premises "that he was for all practical effect on the defendant employer's premises," or, at least, he had reached the ambit of his employment. If sustainable at all the award must be sustained on this theory for there is no evidence in the record that the deceased, on the occasion of his injury, had undertaken to direct traffic or to perform any other duty of his employment.

On the contrary, the uncontradicted evidence tends to show that he was at the time on his way to his place of employment to report for work. He alighted from the bus that had carried him to a point in front of and across the highway from his gate or station. He continued on foot across the highway immediately behind the bus to relieve the guard then on duty. He saw an on-coming car, hesitated and then attempted to cross the road ahead of the car. He was on the public highway and was hit while he was still on the hard surface.

An injury received by an employee while going to and from his work is not compensable unless he is being transported by the employer under contract of employment. Dependents of Phifer's Dependents v. Dairy, 200 N.C. 65, 156 S.E. 147; Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604; Bray v. Weatherly & Co., 203 N.C. 160, 165 S.E. 332; Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540; Lassiter v. Tel. Co., 215 N.C. 227, 1 S.E.2d 542; Rourke's Case, 237 Mass. 360, 129 N.E. 603, 13 A.L.R. 546; Podgorski v. Kerwin, 144 Minn. 313, 175 N.W. 694; Nesbitt v. Twin City Forge & Foundry Co., 145 Minn. 286, 177 N.W. 131, 10 A.L.R. 165; Schneider, Workmen's Compensation Law (2d), 769, § 265. The findings of fact bring this case within the general rule.

Had the deceased been injured while directing traffic under the instructions of his superior it would be immaterial whether he was on or off the premises of his employer. The mere fact, however, that at times the performance of his duties required him to go upon the highway and to assume the extra risk occasioned thereby does not justify or support the conclusion that the public highway was a part of the premises. Nor does the fact that employees of defendant constituted the great majority of those who used the highway as such alter this conclusion. Neither is it important that the operator of the car that struck deceased was also an employee of defendant. At the time he was on his way to get breakfast before reporting for work. Though, generally speaking, he was an employee he was then merely a member of the traveling public using the highway as such.

Even if we accept the finding or conclusion of the Commission that the deceased was on the premises of his employer and within the ambit of his employment the injury and death...