Murray v. Associated Insurers, Inc.

• Decision Date: 03 May 1994
• Docket Number: No. 9310IC5,9310IC5
• Citation: 442 S.E.2d 370,114 N.C.App. 506
• Court: North Carolina Court of Appeals
• Parties: Lillian E. MURRAY, Widow of Hugh H. Murray, Jr., Deceased Employee, and Wachovia Bank & Trust Company, Executor of the Estate of Hugh H. Murray, Jr., Plaintiffs, v. ASSOCIATED INSURERS, INCORPORATED, Employer; Virginia Mutual Insurance Company, Carrier, Defendants.

Page 370

442 S.E.2d 370

114 N.C.App. 506

Lillian E. MURRAY, Widow of Hugh H. Murray, Jr., Deceased

Employee, and Wachovia Bank & Trust Company,

Executor of the Estate of Hugh H.

Murray, Jr., Plaintiffs, v. ASSOCIATED INSURERS, INCORPORATED, Employer;

Virginia Mutual Insurance Company, Carrier, Defendants.

No. 9310IC5.

Court of Appeals of North Carolina.

May 3, 1994.

Decedent Hugh H. Murray Jr. was the founder of Associated Insurers, Inc. He sold the company in 1982 to five coworkers but continued to work as an employee of the company for a salary plus an automobile allowance and operating expenses. On Friday 27 June 1986, decedent was severely injured in a car accident on his way from Raleigh to Hound Ears, North Carolina. Decedent died on 5 September 1987 as a result of his injuries. Plaintiffs filed a claim with the Industrial Commission for death benefits under G.S. 97-38. After a hearing, the Deputy Commissioner entered an opinion and award denying plaintiffs' claims for death benefits. The relevant portions of the Deputy Commissioner's opinion and award are as follows:

EVIDENTIARY RULING

Plaintiff's objection to Defendants' Documentary Evidence, dated 22 February 1991, is SUSTAINED. The undersigned's ruling sustaining defendants' objection to testimony by Mrs. Lillian Murray about statements by her husband that he was going to conduct business at Hound Ears on the weekend of 27 June 1986, remains unchanged and defendants' objections to such statements made by other witnesses, to the extent that they do not conform to the North Carolina Rules of Evidence, are SUSTAINED as well.

. . . .

FINDINGS OF FACT

....

3. Hugh H. Murray, Jr. married Lillian E. Murray in 1960. The lived together as husband and wife from then through the date of his death on 5 September 1987.

4. Mr. Murray was the founder of Associated Insurers, Incorporated, an independent insurance agency. In 1982 he sold Associated Insurers, Incorporated to Robert Guthrie, Durant Vick, Robert King, William Aldridge and Conner Murray.

5. On 27 June 1986, Hugh H. Murray, Jr. was an employee of Associated Insurers, Incorporated. At that time, and at his death, he was being paid at the annual rate of $25,000.00, plus an expense account of $400.00 per month automobile allowance, and incidental expenses associated with his automobile, including tires, gas and oil.

6. After his sell [sic] of Associated Insurers, Incorporated to the five new owners, Mr. Murray's account responsibilities decreased substantially, but he still had various personal accounts assigned to him.

7. Mr. Murray's practice in dealing with the servicing of the personal accounts assigned to him was to meet personally with his clients to discuss his recommendations for changes and any additional insurance they might desire, as well as to personally deliver the insureds' policies and bills for such policies. Mr. Murray's practice of meeting personally with the insureds, however, was not necessary for the accomplishment of his business mission of selling insurance.

8. Mr. Murray's permanent residence was in Raleigh, North Carolina but Mr. Murray and his wife, Lillian Murray, also kept a home in Hound Ears, North Carolina. They maintained the home in Hound Ears for many years prior to 27 June 1986.

9. The home in Hound Ears was located in a scenic resort community with a country club to which Mr. Murray belonged. The Murray's [sic] participated in an extremely active social life in the Hound Ears area.

10. Mr. Murray would spend almost every other, if not every, weekend at the Hound Ears home.

11. As of 27 June 1986, Mrs. Murray had arrived at the home in Hound Ears and Mr. Murray, as usual, intended to join her in Hound Ears for a relaxing weekend.

12. Since Mr. Murray was going to be in Hound Ears the weekend beginning 27 June 1986, Mr. Murray contacted three of his customers in the Hound Ears area and made arrangements to meet with them on 28 June or later.

13. Pursuant to plans that had been arranged for Mr. Murray by his wife, Mr. Murray intended to meet her in Blowing Rock, North Carolina on the evening of 27 June 1986, at the home of Mr. William Mauney.

14. While driving from Raleigh to his destination in Blowing Rock to attend a dinner party at the Mauney home, Mr. Murray was involved in a motor vehicle accident, which eventually resulted in his death on 5 September 1987.

15. Mr. Murray was not going to be conducting any employment-related activities at the dinner party on 27 June 1986.

16. At the time of the collision, Mr. Murray was off-duty and was not engaged in any employment-related activities. The drive to Blowing Rock on the evening of 27 June 1986 was not for defendant-employer's benefit but for Mr. Murray's own benefit.

17. At the time of the collision, the insurance-related documentation for the customers with which Mr. Murray had made appointments later in the weekend, was not in the state of completion and was not in a state of readiness for delivery by Mr. Murray. Mr. Murray was not going to be delivering any insurance documentation on the weekend of 27 June 1986.

18. There was no employment-related purpose which created the necessity for Mr. Murray's trip on 27 June 1986. Mr. Murray was traveling to Hound Ears for a social and relaxing weekend with his wife. * * * * * *

Mr. Murray's work did not create the necessity for travel.

The foregoing findings of fact and conclusions of law engender the following additional CONCLUSIONS OF LAW

1. On 27 June 1986, Hugh H. Murray, Jr. was an employee of defendant-employer, Associated Insurers, Incorporated. N.C.G.S. § 97-2(2).

2. On 27 June 1986, Mr. Murray's average weekly wage yielded the maximum compensation rate of $308.00 per week. N.C.G.S. § 97-2(5).

3. On 27 June 1986, while Mr. Murray was driving to Blowing Rock to attend a dinner party and spend time with his wife at their home in Hound Ears, he was not in an employment-related activity and the collision and injuries sustained did not arise out of and in the course of his employment with defendant-employer. N.C.G.S. § 97-2(6).

4. Plaintiffs argue that the "dual purpose rule" is applicable to the facts presented in this case. The "dual purpose rule," in part, states that when a trip serves both personal and business purposes, it is a personal trip if the trip would have been made despite the failure of the business purpose and would have been dropped in the event of the failure of the private purpose, though the business errand remained undone. Humphrey v. Quality Cleaners and Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959).

5. Assuming arguendo that the "dual purpose rule" is applicable to the present case, inasmuch as Mr. Murray's trip would have been made despite the failure of any business purpose for the weekend in question and would have been dropped in the event of the failure of the private purpose, Mr. Murray's trip was a personal trip and, therefore, Mr. Murray's death as a result of the collision on 27 June 1986 is not compensable under the North Carolina Workers' Compensation Act. Id.; N.C.G.S. § 97-2(6).

* * * * * *

Based upon the foregoing findings of fact and conclusions of law, the undersigned enters the following

ORDER

1. Under the law, plaintiff's claim must be, and the same is hereby, DENIED.

Plaintiffs appealed to the Full Commission and the Full Commission entered the following opinion and award:

The undersigned have reviewed the record with reference to the errors alleged and find no adequate ground to amend the award.

The Findings of Fact and Conclusions of Law, as found by [the Deputy Commissioner], are supported by the competent evidence presented.

The sustained hearsay objections with regard to Mrs. Lillian Murray's testimony and the testimony of other witnesses as to the business purpose of plaintiff's trip are of no consequence to the ultimate outcome of this case. Thus, the need to address this issue becomes moot.

The Full Commission finds that, even if the hearsay evidence was allowed to the extent that it showed a purpose of plaintiff's trip was to conduct business on the weekend in question, at the time of [decedent's] accident, he was in route to a purely non-business related party. Thus, even if [decedent] had business to conduct on June 28, 1986, he was off duty and not about that business on June 27, 1986, when the collision occurred. He was on his way to a dinner party in Blowing Rock (not Hound Ears, where his business was to be conducted), and his purpose was completely a personal one. At the time and place of the collision, [decedent] was not in the course of his employment, even if he would have been at some time the following day.

In view of the foregoing, the Full Commission ADOPTS as its own the Opinion and Award as filed.

Plaintiffs appeal from the opinion and award of the Industrial Commission. Defendants bring cross assignments of error to support the judgment of the Industrial Commission.

Teague, Campbell, Dennis & Gorham by C. Woodrow Teague and George W. Dennis III, Raleigh, for plaintiff-appellants.

Young, Moore, Henderson & Alvis P.A. by B.T. Henderson, II and J.A. Webster, III, Raleigh, for defendant-appellees.

EAGLES, Judge.

Plaintiffs appeal from the Industrial Commission's opinion and award filed 11 August 1992. Defendants also cross assign error to support the Industrial Commission's opinion and award. After careful review of the briefs, transcripts and record, we reverse and remand to the Full Commission for findings of fact on the question of whether decedent had a concurrent business purpose for travelling to Hound Ears on 27 June 1987.

I.

Plaintiffs contend that the Commission erred in finding that "even if [decedent] had business to conduct on June 28, 1986, he was off duty and not about that business on June 27, 1986, when the collision occurred." We agree.

"Employees whose work entails travel away from the employer's premises are held in the majority of...