Larue v. Austin-Berryhill, Inc.

HEDRICK, Judge. Plaintiff contends that finding of fact No. 21 “is not only-contrary to the evidence but is unsupported by any competent evidence; moreover, it is inconsistent ánd -wholly incompatible with Findings of Facts Nos. 8, 9,10 and 11, in that Findings Nos. 8, 9, 10 and 11 show the method through which the employer was making payment for traveling.” Plaintiff further contends that the Industrial Commission erred in concluding that plaintiff’s injuries did not arise out of and in the course of his employment. Findings of fact by the Industrial Commission which are nonjurisdictional are conclusive on appeal when supported by competent evidence, even though there is evidence that would support findings to the contrary. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E. 2d 874 (1968) ; Priddy v. Cab Co., 9 N.C. App. 291, 176 S.E. 2d 26 (1970). Finding of Fact No. 8 is of no legal significance in determining the issue of whether plaintiff’s injuries arose out of and in the course of his employment. Findings 9, 10, and 11 describe how the field employees, including plaintiff, worked ten hours a day for four days (Monday through Thursday) to make a forty-hour week and how their travel time to the job site on Monday morning and from the job site on Thursday afternoon was included in the ten-hour day. These findings do not compel a conclusion that the plaintiff was being paid in any way for the trip from the job site to Greensboro on Wednesday night, December 2, or early Thursday morning, December 3. Finding No. 21 specifically and unequivocally states that plaintiff at the time of the accident “was driving his own motor vehicle at his own expense and for his own personal business.” There is plenary competent evidence in the record to support this finding. Indeed, plaintiff himself testified: “My testimony is that I left Rose Hill at around 10:00 o’clock in the evening to go to Greensboro. I was coming home; that is, I intended to go to my house whenever I got home and spend the night. And then I was going to be in [412] Court-the next day. That trip had nothing to do with my work, only the fact that I had to get off work to make it. I explained to my foreman that I did have to be in Court and he told me that if I had to be in Court I would just have to go, and go on, and he let me off to go to Court. * * * I was expecting that I would not be paid for the Thursday that I didn’t work, I didn’t expect I was going to be paid for Thursday, being off from work to go to Court. Because I worked by the hour. We worked a ten hour day and four day week and got in 40 hours altogether maybe, including travel time.” We are of the opinion and so hold that finding of fact No. 21 supports the conclusion that plaintiff’s tragic accident, injuries, and resulting disability did not arise out of and in the course of his employment. See, Humphrey v. Laundry, 251 N.C. 47, 110 S.E. 2d 467 (1959) ; Alford v. Chevrolet Co., 246 N.C. 214, 97 S.E. 2d 869 (1957) ; Ridout v. Rose’s Stores, Inc., 205 N.C. 423, 171 S.E. 642 (1933) ; Hunt v. State, 201 N.C. 707, 161 S.E. 203 (1931) ; Gay v. Supply Co., 15 N.C. App. 240, 189 S.E. 2d 582 (1972), cert. denied, 281 N.C. 756, 191 S.E. 2d 354 (1972). The order appealed from is Affirmed. Judges Britt and Martin concur.