Humphrey v. Quality Cleaners and Laundry

• Decision Date: 14 October 1959
• Docket Number: No. 174,174
• Citation: 251 N.C. 47,110 S.E.2d 467
• Court: North Carolina Supreme Court
• Parties: 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.

Page 467

110 S.E.2d 467

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.

Oct. 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...