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Felton v. Hospital Guild of Thomasville Inc.

Filed: May 4, 1982.

ELLEN D. FELTON, EMPLOYEE, PLAINTIFF
v.
HOSPITAL GUILD OF THOMASVILLE, INC., EMPLOYER; PENNSYLVANIA NATIONAL MUTUAL INSURANCE CO., CARRIER, DEFENDANTS



Appeal by plaintiff from the opinion and award of the North Carolina Industrial Commission filed 22 January 1981. Heard in the Court of Appeals 30 March 1982.

Martin (Harry C.), Judge. Judge Martin (Robert M.) concurs. Judge Whichard dissents.

Martin

This case can be analyzed upon two theories, each supporting recovery for plaintiff.

Special Errand Rule.

In order for an employee to be entitled to an award under the North Carolina Workers' Compensation Act, there must be injury by accident which arose out of and in the course of the employment. See N.C. Gen. Stat. § 97-2(6) (1979) (and annotations thereunder). Ordinarily, an injury suffered by an employee while going to or coming from work is not an injury arising out of and in the course of employment. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1959); Hunt v. State, 201 N.C. 707, 161 S.E. 203 (1931). There are, however, exceptions to this general rule.

The Commission found plaintiff, in making the journey to the bakery, was on a special mission for her employer and thus not within the general "coming and going" rule. Nevertheless, liability was denied upon the finding by the Commission that the special mission or errand only begins "from the time plaintiff physically leaves her property or premises, in this case from the time she actually enters the public street."

We cannot agree to the "bright line" rule adopted by the Commission in determining when a special errand commences. Although such rule does have the attribute of certainty, it cannot be attained at the expense of justice. In deciding questions about when a special errand begins or ends, each case must be determined upon its particular fact situation. "'No exact formula can be laid down which will automatically solve every case.'" Massey v. Board of Education, 204 N.C. 193, 197-98, 167 S.E. 695, 698 (1933). See Berry v. Furniture Co., 232 N.C. 303, 60 S.E.2d 97 (1950); Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728 (1930); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

When it is established that an employee is on a special errand for her employer, the declared policy of the state requires a liberal construction in favor of the employee in determining whether the accident arises out of and in the course of the employment. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Petty v. Transport, Inc., 276 N.C. 417, 173 S.E.2d 321 (1970); Gallimore, supra. The narrow, restrictive rule adopted by the Commission contravenes this policy.

The proper rule of law to apply to the discrete fact situations is not "did the accident occur on the employee's own premises." Rather, an accident arises out of employment when it occurs in the course of the employment and the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs. 1 A. Larson, The Law of Workmen's Compensation § 6.50 (1978). Plaintiff was injured near her car because the obligations of her employment, the special errand, required her to be at that place when the accident occurred. Where the employment requires travel, the hazards of the route become the hazards of the employment. Hinkle v. Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953). Such is the case here.

Under the facts of this case, we hold that plaintiff had begun her special errand on behalf of her employer. She had left the safety of her house and had entered into the hazards of her journey. Massey, supra. Our holding is supported by Charak v. Leddy, 23 A.D. 2d 437, 261 N.Y.S. 2d 486 (1965). In Charak, claimant had not left the safety of her apartment building when she

was injured, and compensation was denied. She had not entered into the area of risk arising out of her employment, and was injured while doing what any other resident of the building might have done. Here, Mrs. ...


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