Appeal by plaintiff from the North Carolina Industrial Commission opinion and award of 8 January 1981. Heard in the Court of Appeals 11 December 1981.
Vaughn, Judge. Judge Wells concurs.
Plaintiff does not bring forward or argue any exceptions to the Commission's findings except No. 16 which, he argues, is not supported by the evidence. He further argues that the Commission should have found that deceased's actions were required in order for him to perform his usual job and were calculated to further his employer's business. We overrule plaintiff's assignments of error and affirm.
The question of whether the accident arose out of and in the course of employment is a mixed question of fact and law. When the Commission finds that the accident did not arise out of and in the course of the employment, such conclusion must stand unless under no view of the facts found by the Commission such conclusion is warranted. Davis v. Mecklenburg Co., 214 N.C. 469, 199 S.E. 604 (1938); Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342 (1938). The burden of proof, of course, is on plaintiff to prove that the accident arose out of and in the course of the employment.
Since plaintiff does not bring forward and argue any exceptions to the other findings made by the Commission, the question on appeal is whether, under any view of the facts found, the finding that the accident did not arise out of and in the course of decedent's employment is warranted.
Plaintiff argues that the only evidence on which the Commission could deny the claim is the evidence of the violation of a safety rule. Citing Hensley v. Caswell Action Committee, 296 N.C. 527, 251 S.E.2d 399 (1979), and Hartley v. Prison Department, 258 N.C. 287, 128 S.E.2d 598 (1962), plaintiff contends the Commission should have found that decedent's accident arose out of and in the course of his employment. We disagree.
To be compensable, an accident must arise out of and in the course of employment. G.S. 97-2(6). "The words 'in the course of the employment' . . . refer to the time, place and circumstances under which an accidental injury occurs; the phrase 'arising out of the employment' refers to the origin or cause of the accidental injury." Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972).
Hensley v. Gaswell Action Committee, supra, and Hartley v. Prison Department, supra, are distinguishable from the case at hand. In Hensley, the claimant was employed to cut weeds along the banks of a reservoir. Although he had received general instructions not to go into the water, the employee attempted to wade across the reservoir in order to reach some weeds on the opposite bank. He drowned. The claimant in Hartley was employed as a prison guard. His duties included checking around the prison fence and relieving the tower guards. Rather than walk through the gate to reach the tower guards, he tried to climb over the "nonclimbable" barbed fence and was injured. In both cases, the Supreme Court affirmed an award of compensation.
Ordinarily, violation of an employer's safety rule, standing alone, is an insufficient basis upon which to deny compensation. The significant finding in those cases relied on by plaintiff was that the violations occurred while the employees were attempting to perform their assigned jobs. 296 N.C. at 531, 251 S.E.2d at 401; 258 N.C. at 290, 128 S.E.2d at 600. The Commission, therefore, found that the accidents arose out of and in the course of employment.
The present cause more closely resembles Taylor v. Dixon, 251 N.C. 304, 111 S.E.2d 181 (1959). In Taylor, the employee's regular job was to saw down trees. He was injured, however, while driving a tractor pulling logs. The employer argued at the hearing that the employee had stepped outside the boundaries of his work: "The reason I told him not to drive the tractor was because that was not his job. He was employed to run the chain saw. . . . I didn't hire him as a tractor driver." The Supreme Court held that the employer was entitled to a specific finding on this defense. In remanding the case to the Industrial Commission, the Court cited with approval the following language from Larson:
"[I]f the unrelated job is positively forbidden, all connection with the claimant's own employment disappears, for he has stepped outside the boundaries defining, not his method of working, ...