Kiger v. Bahnson Service Co., 260 N.C. 760 (1963)

Dec. 19, 1963 · Supreme Court of North Carolina

260 N.C. 760

OTTS ALDINE KIGER, Father; SADIE KRITS KIGER, Mother; HILDA KATHRIN KIGER, Sister; EDMUND I. ADAMS, Next Friend of DEBORAH LYNN KIGER and DONNA GWYNN KIGER, Minor Children of OTIS ALDINE KIGER, JR., Deceased Employee v. BAHNSON SERVICE COMPANY, Employer; MARYLAND CASUALTY COMPANY, Insurer.

(Filed 19 December 1963.)

Master and Servant § 60—

Wb-ere tbe -employee is directed by bis superiors 'bo report for duty at successive municipalities for work as a necessary incident to- tbe employment, and is paid for bis travel and travel time and permitted to travel iby bus or -bis private car, a fatal a-cciidienit to tbe employee while driving big car to tbe -city designated arises out of tbe employment.

Appeal by defendant® from Johnston, J., July 15, 1963 Session, Foesyth Superior Court.

This proceeding originated before the North -Qaaxilima Industrial Commission upon a -claim for 'benefits- resulting from the death of Otis Aidime Kiger in am .industrial accident. Al-1 jurisdictional and material facts necessary to establish recovery were stipulated, except this one question: Did the death of the employee arise out of and in- the course of his employment? The hearing Commissioner, the full Commission, and the Superior Court Judge -in review answered the question in the affirmative and awarded death -benefits. The employer and its insurance earlier excepted amd appealed.

Hayes •& Hayes by James M. Hayes, Jr., for plaintiff appellees.

Deal, Hutchins and Minor by John M. Minor for defendant appellants.

HiggiNS, J.

The Industrial Commission ha® found that 0-tis Aldine Kiger, age 20 years, was fatally injured by accident ¡arising out of and án itihe course of bis employment by Bahnson Service Company. All other material facts (necessary ibo the award of compensation were stipulated. The appeal, therefore, presents the question whether there is .any substantial evidence in the record that death arose out of the employment.

Prior to Friday, August 12, 1960, the deceased worked for Bahnson Service Company ,ae .a mechanic’s assistant in .one of its field units at Saxiapaihaiw. On 'that day he completed ihis work. Hie foreman, Mr. Smith, knowing the deceased lived near Winston-Salem, instructed him to report to the main office there .for assignment to .another job. He followed the (instructions and on Monday, August 15, reported to Mr. Blaokwelder, installation superintendent in charge of the Winston-Salem office. The superintendent handed him a memorandum introducing him to the foreman, in charge of the employer’s field .unit at Laur-iniburg and instructed .him to report there the following morning at seven o’clock. While on his way as ordered, driving his own vehicle as his employment permitted, he 'had an accident and was killed.

Here we quote in part testimony of Mr. Blaokwelder: “I gave -him the time to be at the job . . . at 7:00 a.m. on Tuesday morning. I .directed him to report to Morgan Mills in Lauriniburg. As far as travel pay is concerned . . . he would have been .paid bus fare from Saxapalhaw . . . and his travel time would have 'been approximately two hours -at his base pay. Neither I nor the company specified .any particular route that ihe was to. travel to Lauriniburg. . . . For his continued employment it .was necessary that he contact me for assignment which 'he did. Employees do have a choice of selecting their own private vehicles or a bus ... If the employee owns a .car and wants to use it, . . . that is his privilege. . . . The bus fare of which I speak ■is limited to bus fare from the last job to the next. . . . The deceased lived with his parents at Rural Hall except when he was out in the field working. Mr. Smith (foreman at Saxapabaw) asked him (.deceased) since he lived nearby, ... to contact me over the weekend.”

Claimants Introduced evidence that Mr. Blackwelder’s memorandum directing deceased to> report to Laurinbung allowed three hours travel •time for which he would be paid. According to Mr. Blackwelder’s recollection the memorandum allowed two hours .travel -time.

Mr. Blaokwelder testified: “For his continued employment it was necessary that he contact me.” It was deceased’s duty to. follow Mr. .Smith’s instruction to- contact Mr. Blackwelder. Likewise it was necessary for him to fallow Mr. Blackwelder’s instructions to report to the main office, and having done so. .and received the written order’s to •report to Laurinburg, is it not a permissible inference from these facts thiat Saxapabaw is no longer of ma-temial consideration in the case? Mr. Smith could and idid send deceased (to Winston-Salem. Mr. Black-welder could and did order (him to Laurkubu-rg. While obeying these order® the fatal accident occurred.

The facts distinguish this case from those holding that off-premises injuries ¡during travel to rand from work are not compensable. Bray v. Weatherly & Co., 203 N.C. 160, 165 S.E. 332; Hunt v. State, 201 N.C. 707, 161 S.E. 203. On the contrary, “Employees whose work entails travel away from the employer’s premises 'are held in the majority of jurisdictions to- be within ithe course of their employment continuously during the trip, except whan a distinct departure on a personal errand is shown.” (citing many eases) Brewer v. Trucking Co., 256 N.C. 175, 123 S.E. 2d 608.

Surely in this case -the fatal accident is fairly traceable to- the employment as a contributing cause. Hardy v. Small, 246 N.C. 581, 99 S.E. 2d 862. The -deceased was being paid during travel in the manner approved- by the employer. “Where -any reasonable relationship to employment exists, or employment is- -a contributory cause, the court is justified in- upholding the award -as ‘-arising out of employment’.” Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E. 2d 476.

Under -the liberal consitructi-on rule which is a -part of workmen’s compensation law, we hold -the evidence was sufficient to support the finding -and the conclusion that the fatal -accident aro-se out o-f -and in the -course- of employment.

The judgment is

Affirmed.