Travelers Ins. Co. v. Curry

Citation221 S.E.2d 75,28 N.C.App. 286
Decision Date07 January 1976
Docket NumberNo. 7518SC675,7518SC675
CourtCourt of Appeal of North Carolina (US)
PartiesThe TRAVELERS INSURANCE COMPANY v. Paul Franklin CURRY et al.

Deal, Hutchins & Minor by William K. Davis, Winston-Salem, for plaintiff-appellant.

O'Connor & Speckhard by Donald K. Speckhard, Greensboro, for Leo Hailey and James Elbert Alston, defendants-appellees.

Booth, Fish, Simpson & Harrison by H. Marshall Simpson, Greensboro, for Nellie B. McRae, Administratrix of the Estate of Harvey Davis, defendant-appellee.

BRITT, Judge.

Plaintiff assigns as error the trial judge's findings of fact and conclusions of law that the accident was not within the scope and course of Hailey's and Alston's employment and thus not excluded from coverage by its policy of insurance. Plaintiff contends that the judgment is contrary to law and against the greater weight of the evidence. We find no merit in these contentions.

The Declaratory Judgment Act, G.S. 1--253 et seq., may be utilized to alleviate uncertainty and clarify litigation. Although it is not applicable to claims under the Workmen's Compensation Act, it is applicable to construction of insurance contracts and in determining the extent of coverage. Cox v. Transportation Co., 259 N.C. 38, 129 S.E.2d 589 (1963); Iowa Mutual Ins. Co. v. Simmons Inc., 258 N.C. 69, 128 S.E.2d 19 (1962). If the claims for personal injuries asserted by defendants Alston and Hailey fall within the scope of the Workmen's Compensation Act they would be subject to the exclusion provision of plaintiff's policy of insurance.

Whether an injury by accident is compensable under the Workmen's Compensation Act is a mixed question of law and fact. Lee v. Henderson & Associates, 17 N.C.App. 475, 195 S.E.2d 48 (1973), Aff'd, 284 N.C. 126, 200 S.E.2d 32 (1973); Bryan v. Church, 267 N.C. 111, 147 S.E.2d 633 (1966). Under G.S. 97--2(6) this is dependent upon whether the accident arose out of and in the course of the employment. Generally, injuries sustained in accidents occurring while an employee is going to or coming from work are not covered by the Act. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957). However, where the employer provides transportation for his employees pursuant to the contract of employment, then he may be subject to liability for purposes of workmen's compensation. Archie v. Lumber Co., 222 N.C. 477, 23 S.E.2d 834 (1943).

The salient factor is whether provision for transportation is a real incident to the contract of employment. Lassiter v. Telephone Co., 215 N.C. 227, 1 S.E.2d 542 (1939). This precept is manifested as something more than mere permission; it approaches employee transportation as a matter of right. In Jackson v. Bobbitt, 253 N.C. 670, 676, 117 S.E.2d 806, 810 (1961), we find:

"The rule has been established in accordance with sound reason that the employer's liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of the contract. Pursuant to this rule, the employee is in the course of employment if he has a right to the transportation, but not if it is gratuitous, or a mere accommodation. . . ." (Quoting from Lassiter v. Telephone...

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13 cases
  • Hejl v. Hood, Hargett & Associates, Inc.
    • United States
    • Court of Appeal of North Carolina (US)
    • April 7, 2009
    ...Bellefonte Underwriters Insur. Co. v. Alfa Aviation, 61 N.C.App. 544, 547, 300 S.E.2d 877, 879 (1983) (citing Insurance Co. v. Curry, 28 N.C.App. 286, 221 S.E.2d 75, disc. review denied, 289 N.C. 615, 223 S.E.2d 396 (1976)), aff'd per curiam, 310 N.C. 471, 312 S.E.2d 426 (1984). "North Caro......
  • Wright v. Alltech Wiring & Controls
    • United States
    • Court of Appeal of North Carolina (US)
    • March 19, 2019 an employee does not by itself expose an employer to liability under the Workers’ Compensation Act. Insurance Co. v. Curry , 28 N.C. App. 286, 290, 221 S.E.2d 75, 78, disc. review denied , 289 N.C. 615, 223 S.E.2d 396 (1976). In Curry , the employer permitted the employee to use a compan......
  • Powers v. APAC-Carolina/Barrus, No. COA04-861 (NC 7/19/2005)
    • United States
    • United States State Supreme Court of North Carolina
    • July 19, 2005
    ...have applied the "coming and going" rule in holding that the claims at issue were not covered under the Act. In Travelers Ins. Co. v. Curry, 28 N.C. App. 286, 221 S.E.2d 75, disc. review denied, 289 N.C. 615, 223 S.E.2d 396 (1976), the decedent employee was allowed to use a vehicle owned by......
  • Smith v. Nationwide Mut. Ins. Co., 8810SC1288
    • United States
    • Court of Appeal of North Carolina (US)
    • February 20, 1990
    ...Inc., 258 N.C. 69, 128 S.E.2d 19 (1962); Nationwide Mut. Ins. Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654 (1964); Travelers Ins. 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); cf. Ramsey v. Interstate Insurors, Inc., 89 N.C.App. 98, 10......
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