Phifer's Dependents v. Foremost Dairy, Inc.

• Decision Date: 19 December 1930
• Docket Number: 476.
• Citation: 156 S.E. 147,200 N.C. 65
• Parties: PHIFER'S DEPENDENTS v. FOREMOST DAIRY, Inc., et al.
• Court: North Carolina Supreme Court

156 S.E. 147

200 N.C. 65

PHIFER'S DEPENDENTS v. FOREMOST DAIRY, Inc., et al.

No. 476.

Supreme Court of North Carolina

December 19, 1930

Appeal from Superior Court, Mecklenburg County; Harwood, Special Judge.

Proceeding under the Workmen's Compensation Law by the employee's dependents for the death of H. T. Phifer claimants, opposed by the Foremost Dairy, Inc., employer, and the Indemnity Insurance Company of North America, insurance carrier. The Industrial Commission granted an award, which was affirmed by the superior court, and the employer and insurance carrier appeal.

Affirmed.

Industrial Commission's finding of fact is conclusive on appeal where there is sufficient competent evidence to sustain award.

This is an appeal from a judgment of the superior court affirming an award to the dependents of the deceased employee, by the North Carolina Industrial Commission.

H. T Phifer had been in the service of Foremost Dairy, Inc., as route foreman for several years. His home was about three miles from the plant. He collected the company's accounts, sometimes delivered milk, and was subject to call at any time after 3 a. m. as a substitute for any regular driver who failed to report for duty. Prior to January 1 1930, he owned a car; but the employer maintained it and furnished gasoline and oil for its operation. Between January 1 and his death the employee used a truck which had been provided by the employer for use in the performance of the employee's duties and in his going to and from his home to the company's plant.

It was admitted that the employee left his home, which was southwest of the city of Charlotte, about 6:30 a. m., February 9, 1930, driving the company's truck, and that as he entered the intersection of West Morehead street and Mint street the truck was struck by an automobile, and he was killed.

The defendants denied that the relation of employer and employee existed at the time of the injury; denied, also, that if such relation existed, the injury arose out of and in course of the employment.

J. Laurence Jones, of Charlotte, for appellants.

Taliaferro & Clarkson, of Charlotte, for appellees.

ADAMS J.

The appellants admit that the employee was killed while in the service of Foremost Dairy, Incorporated, and from the evidence adduced the Industrial Commission found as a fact that the deceased sustained fatal injury as the result of an accident that arose out of and in the course of his employment while being transported in a conveyance furnished by the employer as a part of the contract of employment. As the finding that the conveyance was furnished as a part of the contract is supported by the evidence, it is "conclusive and binding." Workmen's Compensation Law (Pub. Laws 1929, c. 120) § 60. The decisive question is whether the employee's death resulted from injury by accident arising in the course of and out of the employment.

In Harden v. Furniture Company, 199 N.C. 733, 155 S.E. 728, we said that, while the phrase "in the course of" refers to time, place, and circumstances, the words "out of" refer to injuries which follow as a natural incident of the work and which may reasonably be contemplated as a result of the exposure occasioned by the nature of the employment and that, if an employee has sustained an injury which might have been contemplated by a reasonable person as incidental to the service when he entered the employment, the injury may be said to have arisen out of the employment; and in Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296, we held that an employee, who owned a car which he used regularly in going to and from the place where he worked, was not, while going there, engaged in the furtherance of his employer's business.

The later decision is grounded in the principle that the relation of master and servant is usually suspended when the servant, at the end of his day's work, leaves the place of his actual employment and is resumed when the servant puts himself in a position where he can again do the work at the place where it is to be performed. Rourke's Case, 237 Mass. 360, 129 N.E. 603, 13 A. L. R. 546. So it is held as a general rule that an injury suffered by an employee while going to or coming from the employer's premises where the work is carried on does not arise out of his employment so as to entitle him to compensation. 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.

To this rule there are exceptions. While there is diversity of opinion on the question, the weight of authority sustains the conclusion that, if an employer furnishes transportation for his employee as an incident of the employment, or as a part of the contract of employment, an injury suffered by the employee while going to or returning from the place of employment in the vehicle furnished by the employer and under his control arises out of and in the course of the employment. Fisher v. Tide Water Building Co., 97 N J. Law, 324, 116 A. 924; Harrison v. Central Const. Co., 135 Md. 170, 108 A. 874, 877; Scalia v. American Sumatra Tobacco Co., 93 Conn. 82, 105 A. 346; Swanson v. Latham, 92 Conn. 87, 101 A. 492; Donovan's Case, 217 Mass. 76, 104 N.E. 431, Ann. Cas. 1915C, 778; American Coal Mining Co. v. Crenshaw, 77 Ind.App. 644, 133 N.E. 394,...