Massey v. . Board of Education

Clarkson, J. The Workmen’s Compensation Law, chap. 120, Public Laws of N. C., 1929, section 2(f) (N. C. Code, 1931 (Michie), sec. 8081 (i), subsec. (f), is as follows: “ ‘Injury’ and ‘personal injury’ shall *196 mean only injury by accident arising out of and in tbe course of tbe employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.” It is a well-settled rule in this jurisdiction that it is a question of law as to whether there is sufficient competent evidence, more than a scintilla, to support an action. It is also the well-settled rule of practice in this jurisdiction, in cases of nonsuit, and cases of this kind, that the evidence which makes for the plaintiff’s claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.” Bellamy v. Mfg. Co., 200 N. C., at p. 678; Jackson v. Creamery, 202 N. C., 196. The facts and principles of law in both the Bellany and Jackson cases, supra, are in some respects similar to the case at bar. It is well settled that if there is any sufficient competent evidence to support the findings of fact of the Industrial Commission, although this Court may disagree with such findings, this Court will sustain the findings of fact made by the Commission. Kenan v. Motor Co., 203 N. C., at p. 110; Johnson v. Bagging Co., 203 N. C., 579; Richey v. Cotton Mills, 203 N. C., 595. On all the evidence, and there was none except that introduced by plaintiff, the hearing Commissioner and full Commission, on an appeal, decided as a matter of law that there was no sufficient competent evidence that the injury to plaintiff was “only injury by accident arising out of and in the course of employment.” The court below, on this aspect, overruled the Industrial Commission and directed that the cause be remanded to the Industrial Commission. The defendant appealed to this Court. We can see no error in the decision of the court below. The decisions of the Industrial Commission are persuasive, but not binding on this Court on questions of law. We think there was sufficient competent evidence introduced by plaintiff to sustain his contention that he was entitled to compensation under the Workman’s Compensation law, as before set forth. If there was sufficient competent evidence and it was conflicting, it is well settled that this is for the Industrial Commission to decide and not us. The “come and go” rule, as laid down in Hunt v. State, 201 N. C., 707, is not applicable under the facts in this case. Edwards v. Loving Co., 203 N. C., 189; Bray v. Weatherly and Co., 203 N. C., 160. See Winberry v. Farley Stores, Inc., ante, 79. The evidence is to the effect that plaintiff was on his way to the schoolhouse, on the day of the injury, to perform his task of cleaning. *197 He bad tbe money given, by tbe proper authority to buy tbe “Brillo,” tbe cleaning material, wbicb be usually bought at tbe A. &. P. store, tbe place be traded and most likely to have it, and was crossing tbe street to purchase tbe material, on bis way to tbe scboolbouse, when be was struck by a motor vehicle. Tbe evidence was that be bad a “special mission” or “special service” — “out of hours” — to perform, and it was tbe custom “in carrying out their orders” for him to purchase material when be was on bis way to tbe scboolbouse. Tbe evidence was that be was out of material wbicb be needed, and tbe money was given him to buy it, to clean up tbe school building. In fact, without. purchasing tbe cleaning material on bis way to tbe scboolbouse, be could not do tbe cleaning, and, if be bad not purchased it and. performed tbe duty of cleaning, tbe employer no doubt bad tbe right of discharge. We think tbe purchase was a major factor in tbe plaintiff's movement and not incidental. Without tbe cleaning material, bow could be clean ? A case similar is Kyle v. Greene High School (Iowa) 226 N. W. Rep. 71 at p. 72 and 73, citing a wealth of authorities, tbe following is said: “An exception to tbe aforesaid general rule is found in cases where it is shown that tbe employee, although not at bis regular place of employment, even before or after customary working hours, is doing, is on bis way home after performing, or on tbe way from bis home to perform, some special service or errand or tbe discharge of some duty incidental to tbe nature of bis employment in tbe interest of, or under direction of, bis employer. In such cases, an injury arising en route from tbe home to tbe place where tbe work is performed, or from tbe place of performance of tbe work to tbe home, is considered as arising out of and in tbe course of tbe employment.” Scrivner v. Franklin School District (Idaho) 293 Pac. Rep, 666. We think a case similar to tbe present is Voehl v. Indemnity Insurance Co. of North America, decided by tbe United States Supreme Count, see Advance Sheets filed February 6, 1933. Plaintiff “filed a claim for compensation for an injury sustained through an automobile accident while be was on bis way to bis employer’s place of business on Sunday, April 6, 1930, for tbe purpose, according to bis contention, of performing tbe duties assigned to him.” Tbe concluding part of tbe opinion, citing numerous authorities in tbe notes, is as follows: “The general rule is that injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in tbe course of their employment. Ordinarily tbe hazards they encounter in such journeys are not incident to tbe employer’s business. But this general rule is subject to exceptions wbicb depend upon tbe nature and circumstances of tbe particular employment. No exact *198 formula can be laid down wbicli will automatically solve every case.’ Cudahy Co. v. Parramore, 263 U. S., 418, 424. See, also, Bountiful Brick Co. v. Giles, 276 U. S., 154, 158. While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duly assigned to him and shall continue until his return. An agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service and hence within the purview of the Compensation Act.” The plaintiff, from the record, when he was injured was performing this special mission or service, by the custom and by the direct and specific instructions and orders of the employer. He was on his way to the school building to do the cleaning. There was no unreasonable departure in crossing the street to get the cleaning material, where he usually purchased it, and perhaps could not purchase it elsewhere. He had the money for the purpose furnished by those in authority. It was necessary for him to have this cleaning material to do the work which he was on his way to perform. We have read with care the record and the most excellent, well prepared briefs of the litigants. We think from the undisputed facts that there was sufficient competent evidence introduced by plaintiff for the Industrial Commission to have allowed compensation. For the reasons given, the judgment of the court below is Affirmed.