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Powers v. Lady's Funeral Home

Filed: May 4, 1982.

NORWOOD GLENN POWERS, EMPLOYEE, PLAINTIFF
v.
LADY'S FUNERAL HOME, EMPLOYER AND AMERICAN EMPLOYERS INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by plaintiff from opinion and award of the North Carolina Industrial Commission filed 22 January 1981. Heard in the Court of Appeals 11 January 1982.

Morris, Chief Judge. Judge Vaughn concurs. Judge Martin (Harry C.) dissents.

Morris

The sole question presented for review is whether the injury by accident sustained by plaintiff arose out of and in the course of employment. It is undisputed that plaintiff had been called from his house on the night he was injured to embalm a body. The Commission found that plaintiff's injury occurred after he left the funeral home to return to his residence. The general rule is that injuries received by an employee while travelling to or from the work place are usually not covered by this State's Workmen's Compensation Act. Strickland v. King and Sellers v. King, 293 N.C. 731, 239 S.E.2d 243 (1977); Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959). All parties accede, however, to the deputy commissioner's conclusion, supported by the facts, that the journey to and from the funeral home rose to the level of a special errand. Therefore, "[t]he 'come and go' rule, as laid down in Hunt v. State, 201 N.C. 707, is not applicable under the facts in this case. (Citations omitted.)" Massey v. Board of Education, 204 N.C. 193, 196, 167 S.E. 695, 697 (1933). Plaintiff's travel was, therefore, properly considered to have been incident to and in the course of his employment. The denial of compensation turned on the subtle determination that plaintiff's journey from his place of

employment to his home ended when "he actually left the public street or highway located adjacent to his residence and was again physically present on his property." Plaintiff was at his doorstep when injured by the runaway automobile, hence the deputy commissioner's determination and denial of compensation.

The effect of the special errand rule is to confer "portal to portal" coverage on the employee. 1 Larson, Workmen's Compensation Law ยง 16.10 (1978). The deputy commissioner adopted the reasoning of Charak v. Leddy, 23 App. Div. 2d 437, 261 N.Y. Supp. 2d 486 (1965), in which it was determined that a claimant who fell and was injured on the steps in the lobby of her apartment building as she left her apartment on a special errand for her employer had not entered the course of employment. The Court said:

A fall her apartment would not have given rise to any claim. If, however, in the performance of a special errand, she had fallen in the street, barely beyond the outer door of the building, the accident would have been compensable, . . .

Id. at , 21 N.Y. Supp. 2d 487-88. Plaintiff had left the street and was on his own property when injured.

Plaintiff argues that the special errand upon which he had been dispatched did not abruptly terminate upon his return because he was compelled to change clothes and wash the embalming chemical odor from his body at home. We note the deputy commissioner's finding that "the funeral home did not have sleeping facilities available in order for the claimant to remain there at the balance of the evening following an emergency call nor did it have shower facilities for the claimant's use. . . ." Plaintiff's argument does not persuade us that the conclusion of the deputy commissioner, as upheld by the Full Commission, that claimant's accident did not arise out of and in the course of his employment, was incorrect.

For an injury to be compensable under our Workmen's Compensation Act, the claimant must prove:

(1) that the injury was caused by an accident, (2) that the injury arose out of the employment, and (3) that the injury was sustained in the course of employment, G.S. 97-2(6). Whether the claimant sustained an injury by accident is not at issue; indeed, the circumstances plainly show that an "accident", as that word is variously defined in Gabriel v. Newton, 227 N.C. 314, 42 S.E.2d 96 (1947), occurred. Whether an injury arises out of the employment refers to the origin or cause of the accident. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). It is generally said that an injury arises out of the employment "when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment." Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643, 645 (1964). It is unnecessary, however, to make a determination as to whether any reasonable relationship to the employment exists here, because we hold that the accident did not occur in the course of plaintiff's employment. "[T]he phrases 'arising out of' and 'in the course of' are not synonymous but involve two ideas and impose a double condition, both of which must be satisfied in order to bring a case within the Act. (Citations omitted.)" Sweatt v. Board of Education, 237 N.C. 653, 657, 75 S.E.2d 738, 742 (1953).

Whether an injury occurs in the course of the employment depends upon the time, place and circumstances of the accident. Bartlett v. Duke University, 284 N.C. 230, 200 S.E.2d 193 (1973). Plaintiff's travel from his home to his place of employment would normally be covered under the going and coming rule; yet, because of the unusual hour and urgency of his mission, the special errand rule compels us to regard the travel as an integral part of the service performed. See Massey v. Board of Education, supra. The journey ended when plaintiff returned to his property, however, and the deputy commissioner, with proper regard for the "portal to portal" nature of the special errand rule, accurately found plaintiff to be outside the scope of his employment when misfortune befell him. Charak v. Leddy, supra. As defendant points out in his brief, the time of ...


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