Latham v. Southern Fish & Grocery Co.

ClaeesoN, J. We do not think tbe exceptions and assignments of error made by defendants can be sustained. N. 0. Code, 1931 (Micbie), sec. 8081 (i) : “When used in this chapter, unless tbe context otherwise requires: (f) ‘Injury and personal injury’ shall mean only injury by accident arising out of and in tbe course of tbe employment,” etc. In Conrad v. Foundry Co., 198 N. C., 723 (726), it is said: “It follows from what precedes tbat tbe meaning of tbe phrase ‘out of and in tbe course of tbe employment’ is not to be determined by tbe rules which control in cases of negligent default at common law; for one of tbe purposes of tbe recent act is to increase tbe right of employees to be compensated for injuries growing out of their employment. Sundine’s case, 218 Mass., 1, L. R. A., 1916A, 318. Tbe words ‘out of’ refer to tbe origin or cause of tbe accident and tbe words ‘in tbe course of’ to tbe time, place, and circumstances under which it occurred. Raynor v. Sligh Furniture Co., 146 N. W., 665; Hills v. Blair, 148 N. W., 243.” Tbe only question involved in this action: Did tbe injury by accident arise “out of and in tbe course of tbe employment”? We think there was sufficient competent evidence from which tbe Commission found it *508 did. This is conclusive on us on appeal. Public Laws N. C., 1929, cb. 120, sec. 60; N. C. Code, 1931 (Michie), sec. 8081 (ppp); Morgan v. Cloth Mills, 207 N. C., 317 (322). We tbink there was sufficient competent evidence for tbe Full Commission to find tbe facts, and we tbink in law there was no error in tbe Commission making tbe award to plaintiff administrator. Donald Latham was on tbe truck for tbe purpose of unloading and going on it for that reason, as a part of bis employment. Tbe alter ego of tbe employer, F. J. Monday, driver of tbe truck, testified when about 50 feet from tbe store, “Then I turned and told tbe boys I would let them off at French Broad and would go there myself and finish unloading and come home.” “Q. What is tbe custom in taking tbe boys out to make a delivery, you either brought them back to tbe store or tbe nearest point to their home? A. It has been tbe custom. (By tbe court) : That custom applied to taking them out and then letting them out nearest their home? A. Tes, tbe only time we made that was on Sunday.” It was Sunday and French Broad was near Donald Latham’s home. William Fleming testified, in part: “Mr. Sorrells bad employed Donald and me to help Fred deliver some stuff to Biltmore. I went tbe first trip and helped unload. Donald went, too, and helped unload. On tbe second trip be said there wouldn’t be any need for us to go back, and we told him to let us off at French Broad, as we lived near there. I was going to B. Y. P. U. Donald lived near there. I bad worked there before on Sundays. They would take us to tbe point nearest our home. That was a custom. That bad been going on ever since I bad been working there. They employed other boys at different times as spare bands, and be would leave them at tbe place nearest their home when they bad finished their work.” Donald Latham was on tbe truck going to' unload it in tbe course of bis employment, tbe alter ego of tbe defendant grocery company relieved him of bis duty and promised to let him off tbe truck at French Broad, near bis home. This was tbe custom and a natural and implied obligation, and fully sustains tbe finding of tbe Commission. Konopka v. Jackson County Road Commission, 97 A. L. R., 552. We tbink that this case is similar to that of Massey v. Board of Education, 204 N. C., 193, and cases therein cited. For tbe reasons given, tbe judgment of tbe court below is Affirmed.