Fortner v. J.K. Holding Co.

• Decision Date: 02 June 1987
• Docket Number: No. 685A86,685A86
• Citation: 319 N.C. 640,357 S.E.2d 167
• Parties: Betty B. FORTNER, Employee Plaintiff, v. J.K. HOLDING COMPANY, Employer American Insurance Company, Carrier Defendants.
• Court: North Carolina Supreme Court

Page 167

357 S.E.2d 167

319 N.C. 640

Betty B. FORTNER, Employee Plaintiff, v. J.K. HOLDING COMPANY, Employer American Insurance Company, Carrier Defendants.

No. 685A86.

Supreme Court of North Carolina.

June 2, 1987.

Homesley, Jones, Gaines & Fields by Edmund L. Gaines and Cliff W. Homesley, Statesville, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by Thomas E. Williams, Charlotte, for defendants-appellees.

FRYE, Justice.

The sole question on appeal before this Court is whether the plaintiff's accident arose out of and in the course of her employment. We hold that it did not, and accordingly affirm the decision of the Court of Appeals.

Before turning to a consideration of this issue, however, we must first address one preliminary matter. In plaintiff's new brief filed with this Court, in place of a new argument, her attorney included a statement incorporating by reference into the new brief the argument contained in plaintiff's brief before the Court of Appeals. Defendant moved to dismiss plaintiff's appeal for failure to comply with N.C.R.App.P. 28. Plaintiff's attorney submitted a response explaining that he had relied upon the Commentary to Subdivision (d) of Rule 28, which states that that subdivision allows incorporation of argument by reference. The current N.C.R.App.P. 28(d), however, concerns appendices to briefs and makes no reference to incorporation by reference. The commentary refers to former subsection (d). A note appearing in the 1987 volume of rules published by the Michie Company (Annotated Rules of North Carolina) explains that former N.C.R.App.P. 28(d), permitting such incorporation of argument by reference, was repealed in 1981, and incorporation by reference is no longer permitted. However, in the equivalent 1987 volume published by the West Publishing Company and used by the plaintiff, the note was somewhat garbled (North Carolina Rules of Court ). ¹ Deferring action on defendant's motion, the Court issued an order allowing plaintiff fifteen days within which to file an amended brief. Plaintiff complied with this order, and defendant has not been prejudiced thereby. Accordingly, defendant's motion to dismiss plaintiff's appeal is denied. However, we call to the attention of the Bar the fact that incorporation by reference of arguments contained in briefs before the Court of Appeals is not permitted under our present Rules of Appellate Procedure.

Plaintiff filed a claim for workers' compensation benefits as the result of an accident that occurred on 31 August 1984. The claim was denied by the deputy commissioner and again by the Full Commission, which adopted the deputy commissioner's opinion and award as its own. Commissioner Clay dissented. Plaintiff appealed to the Court of Appeals, which affirmed the Commission's decision, with a dissent by Judge Phillips. Plaintiff appealed to this Court.

The facts as found by the Commission show that on 31 August 1984, the date of the accident, plaintiff had been working for defendant employer for about five years. Defendant employer is owned by J.C. Kivett. Plaintiff worked for another company owned by Kivett before working for defendant. Kivett spent most of his time traveling on defendant employer's business, and plaintiff, who was the sole employee in the office, took care of the office. Her duties were varied and variable. Inter alia, she did necessary office work, picked up mail, went to the bank, purchased supplies, cleaned the office, took care of the hanging plants which decorated the office, and ran errands for Kivett. She was allowed a tank of gas per month as a travel allowance.

Some time prior to 31 August 1984, Kivett decided to close the office and rent the building effective 1 September 1984. Because he was going to be out of town at the time, he instructed plaintiff to pack the office materials and move them to another location and to dispose of all the hanging plants except one that he wished to keep. These plants were grown from cuttings that Kivett had brought from home. They had been in the office for about five years. Kivett expected plaintiff to give the plants away or else to keep them. He knew that she would not choose to throw them away as the form of disposal.

On 31 August 1984, the last day the office was to be open, plaintiff put the plants and their hanger in her car and drove home. She intended to return to the office to finish packing and to vacuum. When she arrived at her home, she unloaded the plants and their hanger from her car and set them on the porch. She climbed onto a chair and hung the hanger on a nail that she had previously driven to hold the hanger. She stepped down, decided that the hanger was not level, and stepped back up onto the chair to straighten it. She fell and injured her hip. Neither party takes exception to the findings containing these basic facts; they are accordingly binding upon this Court on appeal. Pollock v. Reeves Bros., Inc., 313 N.C. 287, 292, 328 S.E.2d 282, 286 (1985).

Plaintiff excepts only to the Commission's final finding, that the accident did not arise out of and in the course of her employment, and the Commission's conclusion of law to the same effect. As this Court has stated before on many occasions, " '[w]hether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner's findings in this regard, we are bound by those findings.' " Id. quoting Hoffman v. Truck Lines, Inc., 306 N.C. 502, 506, 293 S.E.2d 807, 809-10 (1982), quoting Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). If the detailed findings of fact compel a conclusion different from that reached by the Commission, it is the duty of the appellate courts to reverse the Commission. Alford v. Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957). Far from compelling a conclusion different from that reached by the Commission, the detailed facts found by the Commission in the instant case support the finding that plaintiff's accident did not arise out of and in the course of her employment.

In order for an employee to be entitled to workers' compensation benefits for accidental injury, the employee must prove that the accident arose out of and in the course of the employment. N.C.G.S. § 97-2(6) (1985). The term "arising out of" refers to the origin or cause of the accident, and the term "in the course of" refers to the time, place, and circumstances of the accident. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E.2d...