Latham v. Southern Fish & Grocery Co., 208 N.C. 505 (1935)

Oct. 9, 1935 · Supreme Court of North Carolina

208 N.C. 505

JAMES S. LATHAM, Administrator of the Estate of DONALD LATHAM, Deceased, v. SOUTHERN FISH AND GROCERY COMPANY (Employer) and THE TRAVELERS INSURANCE COMPANY (Carrier).

(Filed 9 October, 1935.)

1. Master and Servant F lb — Evidence held sufficient to sustain finding that accident arose out of and in course of employment.

There was evidence to the effect that two employees were hired to ride on defendant employer’s truck to help the driver unload at the place of delivery, that on the occasion in question the driver, the employer’s alter ego, changed his mind, after leaving defendant’s warehouse, and decided he would not need help in unloading on this particular trip, which was the last for the day, and that the driver consented to let the employees off the truck at the place on his route nearest their homes, in accordance with established custom, and that when the driver slowed up at the appointed place to let the employees get off, one of the employees, claimant’s intestate, attempted to alight before the truck had completely stopped, contrary to express orders, and fell to his mortal injury. Held: The evidence was sufficient to sustain the finding of the Industrial Commission that the accident arose out of and in the course of the employment. N. C. Code, 8081 (i).

3. Master and Servant F i—

Where there is any competent evidence in support of the finding of the Industrial Commission that the accident in question arose out of and in the course of the employment, the finding is conclusive on the courts upon appeal.

Appeal by defendants from Oglesby, J., at August Term, 1935, of BuNoombe.

Affirmed.

On tbe appeal from the hearing commissioner, the Full Commission found the facts, and on the facts found made an award in favor of plaintiff.

From the evidence the Full Commission found the following facts:

“Upon all the facts in the record, the Full Commission finds that the deceased was employed to assist in loading the employer’s truck and unloading it at the place of delivery at the A. & P. warehouse, and that tbe contract of employment contemplated that the deceased should stay with the said truck while making delivery of the said produce,, whether it required one or more loads to complete the delivery which the employer then contemplated making. After loading the produce on the truck at the store, the deceased and fellow employee, the colored boy, William Fleming, rode on said truck to the A. & P. .warehouse. After reaching the warehouse the produce was unloaded from the truck. It was then found that at the A. & P. warehouse the produce delivered did not correspond with the order given for same, as there was a shortage in weight. The A. & P. warehouse also desired to order additional produce not included in the first order. The employer’s truck, in charge of Mr. E. J. Monday, returned with the two colored boys to the store-in the city of Asheville, with the purpose of .securing the balance of the said produce ordered by the A. & P. Company. A part of this produce was loaded on the truck. It was found to be impossible to complete the full order. After this produce was loaded on the truck the deceased, Donald Latham, and his coemployee, William Fleming, got back on the truck for the purpose of returning to assist in unloading it at the warehouse of the A. & P. Company, at which the first delivery had been made. The driver of the truck, E. J. Monday, after starting the truck up and while proceeding away from the store of the employer, and having gotten fifty feet therefrom, decided .that it would be unnecessary to carry the two boys with him back to make the delivery. While the truck was in motion the driver of the truck, E. J. Monday, turned and talking to the two boys in the back of the truck, said: 'There ain’t no use for you all to go up there with me. I will just go up there and cut around through the tunnel hole and would not have to come back by the depot and would go on home and go back to sleep.’ The boys were then told that their services would not be needed any longer. The boys,, including the deceased, Donald Latham, requested the driver, E. J. Monday, to let them off at Erench Broad Avenue, the nearest point to the home of the deceased, Donald Latham, which point also was nearer a B. T. P. U. meeting, which the colored boy, William Eleming, desired to attend. The truck proceeded to the said point and slowed down to permit the two boys to alight therefrom. Before the truck stopped, and contrary to the instructions of the driver, F. J. Monday, the deceased, Donald Latham, attempted to step from the moving truck. In stepping from the truck he fell on the pavement, receiving a fracture of the skull, from which he shortly thereafter died. It is found as a fact that the deceased left no dependents, either total or partial. It is found as a fact that James S. Latham, father of the deceased, is qualified as administrator of the deceased.”

Tbe defendants made numerous exceptions and assignments of error, .and in apt time, in open court, duly excepted to tbe confirmation of said findings of fact, reading as follows: “(a) It is further found as a fact tbat tbe death of tbe deceased, resulting from an injury by accident, arose out of and in tbe course of tbe deceased’s employment with tbe Southern Fish & Grocery Company, (b) While en route to this point and until tbe employee bad alighted from tbe truck be was in tbe course of bis employment, and an injury received by him in falling from tbe truck was an accident arising out of bis employment.”

Tbe court below rendered tbe following judgment: “This cause coming on to be beard before bis Honor, John M. Oglesby, judge presiding and bolding tbe August Term, 1934, of tbe Superior Court of Buncombe County, on appeal by employer and its carrier on tbe findings of fact and conclusions of law of tbe Industrial Commission: It is therefore ordered, adjudged, and decreed tbat tbe findings of fact and conclusions of law as set out in tbe opinion of tbe Industrial Commission be and tbe same are hereby in all respects affirmed. This 9 August, 1935. John M. Oglesby, Judge Presiding.”

Exceptions and assignments of error were duly made from tbe judgment of tbe court below, and appeal taken to tbe Supreme Court.

Ford, Goxe & Carter for plaintiff.

Smaihers, Martin & McCoy for defendants.

ClaeesoN, J.

We do not think tbe exceptions and assignments of error made by defendants can be sustained.

N. 0. Code, 1931 (Micbie), sec. 8081 (i) : “When used in this chapter, unless tbe context otherwise requires: (f) ‘Injury and personal injury’ shall mean only injury by accident arising out of and in tbe course of tbe employment,” etc.

In Conrad v. Foundry Co., 198 N. C., 723 (726), it is said: “It follows from what precedes tbat tbe meaning of tbe phrase ‘out of and in tbe course of tbe employment’ is not to be determined by tbe rules which control in cases of negligent default at common law; for one of tbe purposes of tbe recent act is to increase tbe right of employees to be compensated for injuries growing out of their employment. Sundine’s case, 218 Mass., 1, L. R. A., 1916A, 318. Tbe words ‘out of’ refer to tbe origin or cause of tbe accident and tbe words ‘in tbe course of’ to tbe time, place, and circumstances under which it occurred. Raynor v. Sligh Furniture Co., 146 N. W., 665; Hills v. Blair, 148 N. W., 243.”

Tbe only question involved in this action: Did tbe injury by accident arise “out of and in tbe course of tbe employment”? We think there was sufficient competent evidence from which tbe Commission found it did. This is conclusive on us on appeal. Public Laws N. C., 1929, cb. 120, sec. 60; N. C. Code, 1931 (Michie), sec. 8081 (ppp); Morgan v. Cloth Mills, 207 N. C., 317 (322).

We tbink there was sufficient competent evidence for tbe Full Commission to find tbe facts, and we tbink in law there was no error in tbe Commission making tbe award to plaintiff administrator.

Donald Latham was on tbe truck for tbe purpose of unloading and going on it for that reason, as a part of bis employment. Tbe alter ego of tbe employer, F. J. Monday, driver of tbe truck, testified when about 50 feet from tbe store, “Then I turned and told tbe boys I would let them off at French Broad and would go there myself and finish unloading and come home.” “Q. What is tbe custom in taking tbe boys out to make a delivery, you either brought them back to tbe store or tbe nearest point to their home? A. It has been tbe custom. (By tbe court) : That custom applied to taking them out and then letting them out nearest their home? A. Tes, tbe only time we made that was on Sunday.” It was Sunday and French Broad was near Donald Latham’s home.

William Fleming testified, in part: “Mr. Sorrells bad employed Donald and me to help Fred deliver some stuff to Biltmore. I went tbe first trip and helped unload. Donald went, too, and helped unload. On tbe second trip be said there wouldn’t be any need for us to go back, and we told him to let us off at French Broad, as we lived near there. I was going to B. Y. P. U. Donald lived near there. I bad worked there before on Sundays. They would take us to tbe point nearest our home. That was a custom. That bad been going on ever since I bad been working there. They employed other boys at different times as spare bands, and be would leave them at tbe place nearest their home when they bad finished their work.”

Donald Latham was on tbe truck going to' unload it in tbe course of bis employment, tbe alter ego of tbe defendant grocery company relieved him of bis duty and promised to let him off tbe truck at French Broad, near bis home. This was tbe custom and a natural and implied obligation, and fully sustains tbe finding of tbe Commission. Konopka v. Jackson County Road Commission, 97 A. L. R., 552.

We tbink that this case is similar to that of Massey v. Board of Education, 204 N. C., 193, and cases therein cited.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.