Puett v. Bahnson Co., 231 N.C. 711 (1950)

April 12, 1950 · Supreme Court of North Carolina

231 N.C. 711

ARTHUR E. PUETT, CLARENCE L. McCALL and ROY H. MORRISON v. THE BAHNSON COMPANY and MARYLAND CASUALTY COMPANY.

(Filed 12 April, 1950.)

Master and Servant § 40d—

Injuries sustained in an automobile accident by employees while on their way to or from their work in an automobile owned by one of them arises out of and in the course of their employment when, under the terms of the employment and as an incident to the contract of employment, allowances are made by the employer to cover the cost of such transportation.

Bakniiill and EitvrN, JJ., took no part in the consideration or decision of this case.

Appeal by defendants from Budisill, J., September-October Term, 1949, of BtjRice.

Proceeding under Workmen’s Compensation Act to determine liability of defendants to three injured employees, Arthur E. Puett, Clarence L. McCall and Roy H. Morrison.

In addition to tbe jurisdictional determinations, the essential findings of tbe Industrial Commission follow:

Tbe plaintiffs, wbo live in Morganton, were employed by tbe defendant to install an air-conditioning system in a cotton mill at Bbodbiss, a distance of some 15 or 20 miles from tbeir bornes. Tbey commuted back and forth eacb day, first witb one of tbe employees “furnishing transportation and then the other; that on tbe day in question (24 April, 1947) tbe claimants were riding witb Clarence McCall and about 6 :30 or 7 :00 o’clock in tbe morning while tbey were on tbeir way from Morganton to Bbodbiss and at a point about five or six miles north of Morganton, tbey were involved in an automobile accident, including tbeir jeep and two other motor vehicles,” which resulted in injury to all three claimants.

As it was not convenient for tbe claimants to procure living quarters in Bhodhiss, eacb was paid $20.80 a week in addition to bis regular salary, to cover bis living expenses and tbe expense of traveling to and from tbe place of employment.

“Tbis Commission has uniformly beld that injuries received while going to and from work are not generally compensable, but we have beld witb equal consistency that where transportation is furnished in going to and from work, that tbe injury sustained during said time is compensable, and we think that tbis is true whether tbe actual vehicle is furnished by tbe employer or whether tbe employer furnishes tbe money to pay for said transportation and leaves it to tbe employee to provide his own mode of transportation.”

Tbe Commission, therefore, awarded compensation to eacb of tbe claimants, and tbis was affirmed on appeal to tbe Superior Court. From tbis latter ruling, the defendants appeal, assigning errors.

O. Lee Horton for plaintiffs, appellees.

Proctor & Dameron for defendants, appellants.

Stacy, C. J.

Tbe question for decision is whether an injury sustained in an automobile accident by employees while on their way to or from tbeir work arises out of and in tbe course of tbe employment, when, under tbe terms of tbe employment, allowances are made by tbe employer to cover tbe cost of such transportation. No exact prototype of tbis question is to be found in any of our previous decisions. It seems to be one of first impression. Rewis v. Ins. Co., 226 N.C. 325, 38 S.E. 2d 97.

Tbe claimants cite Smith v. Gastonia, 216 N.C. 517, 5 S.E. 2d 540, as tending to support tbeir position. The defendants say the case of Hunt v. State, 201 N.C. 707, 161 S.E. 203, is more nearly in point. In tbe Smith Case tbe employer furnished tbe means of transportation, tbe car itself, and tbe claimant was on duty at tbe time of tbe injury. In the Hunt Case tbe claimant furnished bis own means of transportation, albeit bis pay started from tbe time be left borne. Even so, tbe claimant bad not reached tbe place where be could do any work for tbe employer when the injury occurred. See Mion v. Marble & Tile Co., 217 N.C. 743, 9 S.E. 2d 501; Hildebrand v. Furniture Co., 212 N.C. 100, 193 S.E. 294; Dependents of Phifer v. Dairy, 200 N.C. 65, 156 S.E. 147.

Tbe authorities elsewhere are inharmonious, 58 Am. Jur. 726, with tbe majority favoring compensation. Tbe Industrial Commission has consistently followed tbe majority view, and we are inclined to approve, where, as here, tbe cost of transporting tbe employees to and from their work is made an incident to tbe contract of employment. Archie v. Lumber Co., 222 N.C. 477, 23 S.E. 2d 834; Voehl v. Indemnity Ins. Co., 288 U.S. 162, 77 L. Ed. 676, 87 A.L.R. 245, and Annotation, 250. See, also, Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 139 A.L.R. 1465.

Affirmed.

Barnhill and Ervin, JJ., took no part in tbe consideration or decision of this case.