Robertson v. Shepherd Const. Co., 7910IC250

Citation261 S.E.2d 16, 44 N.C.App. 335
Case DateDecember 18, 1979
CourtCourt of Appeal of North Carolina (US)

Page 16

261 S.E.2d 16
44 N.C.App. 335
Alma Atkins ROBERTSON, Widow of Thomas Roosevelt Robertson, Deceased
v.
SHEPHERD CONSTRUCTION COMPANY and Continental Casualty
Insurance Company.
No. 7910IC250.
Court of Appeals of North Carolina.
Dec. 18, 1979.

Faw, Folger, Sharpe & White by Fredrick G. Johnson, Dobson, for plaintiff-appellee.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter, William C. Raper and Frederick J. Murrell, Winston-Salem, for defendants-appellants.

HARRY C. MARTIN, Judge.

The hearing commissioner and the full commission concluded that Thomas Robertson died from an injury by accident arising out of and in the course of his employment. This conclusion of law is based on two findings of fact:

15. Decedent was in the course of his employment with defendant-employer while driving the company-owned truck on July 16, 1976. There was no reason to use the company truck for transportation home because his wife was present with their personal car ready to take him home. Decedent was scheduled to work the next day, Saturday, July 17, 1976. He had permission to drive the company truck home and was traveling the route normally traveled going to and from work.

24. Decedent sustained an injury by accident arising out of and in the course of his employment on July 16, 1976 which resulted in his death. Decedent's death was not proximately caused by intoxication.

Defendants argue that there is no evidence in the record to support these crucial findings. We agree with defendants and therefore reverse the ruling of the full commission.

[44 N.C.App. 337] An absolutely essential element for recovery under the N.C. Workers' Compensation Act is that injuries be the result of an "accident arising out of and in the

Page 18

course of the employment, . . . ." N.C.Gen.Stat. 97-2(6). As a general rule, injuries sustained in accidents occurring while the employee is going to or coming from work are not compensable under the Act. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957); Insurance Co. v. Curry, 28 N.C.App. 286, 221 S.E.2d 75, Disc. rev. denied, 289 N.C. 615, 223 S.E.2d 396 (1976). There is, however, an exception to the general rule: injuries sustained by an employee while going to or from work are considered to have arisen in the course of his employment and are compensable if the employer is under a contractual duty to provide transportation for his employees. Whittington v. Schnierson & Sons, 255 N.C. 724, 122 S.E.2d 724 (1961); Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540 (1939); Insurance Co. v. Curry, supra.

A further requirement under this exception is that this provision for transportation must be an incident to the contract of employment. Lassiter v. Telephone Co., 215 N.C. 227, 1 S.E.2d 542 (1939); Harris v. Farrell, Inc., 31 N.C.App. 204, 229 S.E.2d 45 (1976). The transportation must be provided as a matter of right; if it is merely permissive, gratuitous, or a mere accommodation, the employee is not in the course of employment. Jackson, Long, Johnson,...

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7 cases
  • Chavis v. Tlc Home Health Care
    • United States
    • United States State Supreme Court of North Carolina
    • August 16, 2005
    ...within the course of employment while in transit.'" Hunt, 153 N.C.App. at 270, 569 S.E.2d at 679 (citing Robertson v. Construction Co., 44 N.C.App. 335, 337, 261 S.E.2d 16, 18 (1979)). TLC Home Care assigned error to the Commission's finding of fact number four: "[P]laintiff was reimbursed ......
  • Wright v. Alltech Wiring & Controls
    • United States
    • Court of Appeal of North Carolina (US)
    • March 19, 2019
    ...merely permissive, gratuitous, or a mere accommodation, the employee is not in the course of employment." Robertson v. Constr. Co. , 44 N.C. App. 335, 337, 261 S.E.2d 16, 18 (1979), disc. review denied , 299 N.C. 545, 265 S.E.2d 405 (1980). In the instant case, the Industrial Commission mad......
  • Hunt v. TENDER LOVING CARE HOME CARE AGENCY, COA01-1571.
    • United States
    • Court of Appeal of North Carolina (US)
    • October 1, 2002
    ...or as an accommodation, the employee is not within the course of employment while in transit. Robertson v. Construction Co., 44 N.C.App. 335, 337, 261 S.E.2d 16, 18 (1979). Where the cost of transporting employees to and from work is made an incident to the contract of employment, compensat......
  • Hunt v. APAC Carolina, Inc., No. COA05-512 (NC 2/21/2006)
    • United States
    • United States State Supreme Court of North Carolina
    • February 21, 2006
    ...his employees or the employer's provision of transportation is incident to the contract of employment. Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 337, 261 S.E.2d 16, 18 (1979). "The transportation must be provided as a matter of right; if it is merely permissive, gratuitous, or a ......
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