McNinch v. Henredon Industries, Inc.

MORRIS, Chief Judge. — 255 — Defendant brings forth thirteen assignments of error on appeal. Assignments of error Nos. 4 and 9 are not argued by defendant in his brief. Therefore, these are deemed abandoned pursuant to Rule 28(b)(3); Rules of Appellate Procedure. Defendant charges in its first assignment of error that the deputy commissioner erred in overruling its obj ection to a question posed by plaintiff at the original hearing to witness Wyatt. The question and testimony to which defendant objected were in reference to defendant’s regulation which forbade drivers from carrying unauthorized passengers in their trucks without company approval. The question and contextual testimony read as follows: Mr. Wyatt was then handed papers and recognized them as the regulations for drivers. On page 17 at the bottom of the page is a paragraph entitled “In the Truck, paragraph 2” which states as follows: “Any truck carrying unauthorized passengers is illegal and contrary to the insurance company rules and is prohibited in this company. Drivers found violating this rule are subject to dismissal. The only authorized passengers are those with written passes signed by company officials. Exceptions to this rule will be allowed only in cases of emergency. The name of the person, where and why they were picked up, and where they were taken should be turned in with your bills at the end of the trip.” I knew that rule before this trip. The only way I could get the stuff up there was to take Mr. McNinch with me. Q. Was it your intention to comply with this rule? MR. GARDNER: Objection. A. Yeah. THE COURT: Overruled. EXCEPTION NO. 1. When I got back, I was going to inform Mr. Wood as to what I had done and I also tried to get hold of him before. Defendant contends that the question was incompetent, irrelevant, leading and called for a conclusion by the witness. Defendant takes the position that Wyatt’s state of mind was irrelevant to the issues of this case, that only plaintiffs state of mind was relevant as to whether he was acting within the — 256 — course of his employment and in compliance with defendant’s regulations. We do not agree. Evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue. 1 Stansbury, N.C. Evidence 2d, § 77 (Brandis rev. 1973). There should be a reasonable connection between the evidence and the fact to be proved by it. However, the evidence need not bear directly on the issue. It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact. (Citation omitted.) State v. Arnold, 284 N.C. 41, 47-48, 199 S.E. 2d 423, 427 (1973). In determining whether plaintiff was acting within the course of his employment at the time this accident occurred, the issues narrow to the question of whether the truck drivers were acting in compliance with defendant’s regulations. Wyatt’s testimony with regard to whether he was acting, or intended to act, in compliance with the regulations was relevant to this issue. Wyatt was basically responsible for carrying out this haul. It was Wyatt who would suffer the consequences if this load was late arriving in Detroit. Plaintiff was a passive participant who agreed to help his co-employee get the job done properly. The major decisions in this instance had to be made by Wyatt. It was up to Wyatt whether to attempt to make the Detroit deadline. It was his decision that circumstances warranted his carrying plaintiff along on the trip without first notifying the dispatcher. It was his decision that the situation merited being treated as an emergency so that defendant’s ordinary rules could be suspended. The question was posed to Wyatt for the purpose of showing that this was an emergency situation within the rules of the drivers policy manual, which justified Wyatt in allowing plaintiff to aid him with this haul. Therefore, we think the question addressed to Wyatt as to whether he intended to comply with these rules was relevant. There was a reasonable relationship between the question asked and the issue of whether plaintiff was acting within the course of his — 257 — employment. Although the question was leading, we discern no abuse of discretion requiring reversal. State v. White, 298 N.C. 430, 259 S.E. 2d 281 (1979); State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974). We are of the opinion that the deputy commissioner did not abuse her discretion by allowing plaintiffs question. The question functioned to clarify for the tribunal the point which the witness was trying to convey. Nor do we think plaintiffs question usurped the decision making province of the fact finder. Plaintiff asked Wyatt what his intentions were in carrying out his actions. Plaintiff was not asking the witness for an opinion. The jury was left free to determine for itself what Wyatt’s true intentions were from the evidence of the events surrounding the incident and the actions Wyatt took as from his testimony. Defendant assigns error to six portions of the findings of fact as adopted by the Commission. In each of these assignments of error defendant claims that the specified findings of fact are not supported by competent evidence in the record, and that each is against the greater weight of the evidence. The standard by which the Industrial Commission is required to examine the evidence before it in order to draw its conclusions therefrom was well summarized by Judge Brock, later Chief Judge, in West v. Stevens, 6 N.C. App. 152, 169 S.E. 2d 517 (1969). It is well established that the findings of fact by the Industrial Commission are conclusive and binding upon the courts when supported by competent evidence. Taylor v. Jackson Training School, 5 N.C. App. 188, 167 S.E. 2d 787. Also, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Taylor v. Jackson Training School, supra. In its consideration of claims the Industrial Commission is not compelled to find in accordance with testimony of any particular witness; its function is to weigh and evaluate the entire evidence and determine as best it can where the truth lies. 6 N.C. App. at 155-156, 169 S.E. 2d at 519. — 258 — Defendant first assigns error to the use of the word “severely” in finding of fact No. 3. Defendant seems to contend that the commissioner found that Wyatt injured his back “severely” when he hooked up the trailer. The finding was, however, that his slipping while hooking the trailer “caused his back to hurt severely.” There is considerable difference in meaning, and the evidence does support a finding that Wyatt’s back hurt “severely.” In any event, the full Commission deleted the word “severely” from finding of fact No. 3, so defendant’s position is not well taken. Defendant complains that several of the Commission’s findings of fact which were based upon the premise that it would be possible for Wyatt and plaintiff to reach the customer in Detroit by the seven a.m. deadline on the seventh were in error. Defendant’s position is that in consideration of the time at which Wyatt and plaintiff departed from Marion it was impossible for them to reach their destination on time. If, as defendant argues, the evidence showed it was impossible for the drivers to meet their deadline, this would contradict several of the findings of fact upon which the Commission’s ultimate conclusion that an emergency situation did exist was based. In summary, defendant complains that the following findings of fact were not supported by the evidence: In a portion of its fifth finding of fact the Commission found that, “[t]ime was of the essence for delivering the furniture;” as part of its seventh finding of fact the Commission found that Wyatt requested assistance from plaintiff, “so that the shipment would be timely delivered;” the Commission found in its thirteenth finding that plaintiffs rendering of assistance to Wyatt would have made possible the timely delivery of the furniture to defendant’s benefit. Defendant contends that because the evidence shows that it was impossible for the drivers to reach their destination on time, these findings of fact are necessarily erroneous. Defendant argues that the only competent evidence of record reflects that Wyatt and plaintiff, working together, could not have possibly reached Detroit by the seven a.m. appointment. It contends that the evidence shows that the trip to Detroit normally took approximately fourteen hours, and the pair of drivers did not leave Marion together until some uncertain time after five p.m. on 6 October 1977. Therefore, it was — 259 — impossible for them to have reached Detroit by seven a.m. the next morning. We disagree. There was evidence in the record to support a finding that it was possible for Wyatt and plaintiff to reach their destination on time. The record indicates, at least, by inference, that plaintiff and Wyatt both thought that they could reach their destination on time if they departed from Marion when they did. Had Wyatt left the Marion terminal at five p.m., this would have given him precisely fourteen hours from the time of departure until the appointed time of arrival. We note that the fourteen hours was an approximation of the necessary time. Intervening extraneous factors in the individual trip could create variations in the time either way. The evidence shows that after leaving the terminal at five p.m. Wyatt talked with plaintiff on his citizens band radio, and asked for his assistance. Wyatt then met plaintiff at the Sugar Hill Truck Stop to discuss the trip, and later picked up plaintiff at his home after he had showered and packed fresh clothes. There is no direct evidence of how long this course of events took, or at what time the drivers actually departed for Detroit. Wyatt had made deliveries to the same customer in Detroit in the past “over 25 times”. Plaintiff had also made deliveries to this destination on two or three previous occasions. Obviously, both should have been familiar with the route and the amount of time needed to complete the trip. It is a fair assumption that both drivers thought they could leave Marion at the time they eventually did, and still reach Detroit on time. With these factors in mind, we think there were sufficient facts from which the Commission could conclude that it was possible, albeit difficult, for Wyatt and plaintiff to reach their destination on time. This being so, this determination supports the premise upon which the Commission based these three disputed findings of fact. Therefore, we hold that these three findings of fact were supported by evidence in the record. Furthermore, with regard to the Commission’s finding that, “[t]ime was of the essence for delivering the furniture” the record contains more substantiation. The evidence shows that the dispatcher had impressed upon Wyatt the importance of arriving at the retailer’s in Detroit no later than the appointed — 260 — time the following morning. Otherwise, the load of furniture would be refused until the following Monday morning. Plaintiff and Wyatt were aware that in the past defendant’s drivers had been delinquent in the deliveries to this particular customer, causing ill feelings between defendant and this customer. Wyatt testified with regard to whether it was his impression that time was of the essence in making this delivery as follows: I knew that if I waited long enough I could get up with Mr. Wood and he would take care of things, but I didn’t have time. It was 5:00. I had a 7:00 appointment. I had to go. I knew Mr. Woods could take care of that if I called him but Mr. Woods told me to be there and I had no choice except to go. This evidence adequately supports the contested finding of fact. Defendant submits that the Commission erred in adopting the portion of finding of fact No. 8 in which the deputy commissioner found that, “[bjoth Wyatt and Plaintiff had, and knew that other drivers had, doubled up and split the pay on previous occasions when only a single driver was dispatched.” On redirect examination, plaintiff testified: “I do know firsthand that drivers double up with the company.” Similarly, Wyatt testified that: “To my knowledge they have had some double operations. In fact, I run double myself.” This testimony does not indicate that plaintiff, himself, had actually ever run double, but it does show that he was aware of the practice. Any error resulting from the Commission’s finding that both plaintiff and Wyatt had run double was not prejudicial. It is obvious from this testimony that running double was not an uncommon practice among defendant’s drivers. This assignment of error is overruled. Defendant maintains that there was insufficient evidence to support the portion of finding of fact No. 9 in which the Commission found that Wyatt acted with the intention to comply with defendant’s regulations. Previously, we have discussed the circumstances under which Wyatt was acting. It is unnecessary to recite that evidence here. Those circumstances support the conclusion that Wyatt was faced with an emergency situation that justified his disregard of defendant’s normal rules of — 261 — operation. Futhermore, Wyatt testified that he acted with the intention of complying with defendant’s rules. We have already held that this testimony was relevant and admissible. We think this evidence adequately supports the contested finding of fact. The major issue presented by this appeal is whether plaintiff was acting within the course and scope of his employment at the time the accident occurred. Defendant contends that the Commission was in error when it concluded as a matter of law that the injuries plaintiff sustained arose out of and in the course of plaintiff’s employment. Defendant argues that there was no competent" evidence to support such a conclusion, and that such a conclusion under the facts of this case was contrary to the laws of this State. It is defendant’s position that at no time during the course of events leading up to and including the accident was plaintiff acting within the course of his employment. He contends that this is so because plaintiff ignored the prohibitions of his employer, failed to attempt to obtain authorization from defendant to accompany Wyatt on the trip, undertook the trip on condition that he obtain personal benefits from it, had no expectation of receiving pay for his assistance, and had no authorization although he knew that it was required and knew that he was off duty at all times during that weekend. In conjunction with its argument that the Commission’s conclusions of law were contrary to the law, defendant asserts that conclusions of law Nos. 1, 2 and 4 were not properly supported by findings of fact. However, in his brief defendant does not specifically address the position he takes in his assignments of error with regard to whether these conclusions of law were supported by the findings of fact. Therefore, we deem those contentions to be abandoned. In Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596 (1955), Justice Bobbitt, later Chief Justice, summarized the law of torts with respect to what constitutes acting within the scope of one’s employment as follows: The Act [Workman’s Compensation Act] “should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation,” Johnson v. Hosiery Co., 199 N.C. 38, 153 S.E. 591; but “the rule of liberal construction cannot be employed to — 262 — attribute to a provision of the act a meaning foreign to the plain and unmistakable words in which it is couched,” Henry v. Leather Co., 231 N.C. 477, 57 S.E. 2d 760. “Acts of an employee for the benefit of third persons generally preclude the recovery of compensation for accidental injuries sustained during the performance of such acts, usually on the ground they are not incidental to any service which the employee is obligated to render under his contract of employment, and the injuries therefore cannot be said to arise out of and in the course of the employment. ... However, where competent proof exists that the employee understood, or had reasonable grounds to believe that the act resulting in injury was incidental to his employment, or such as would prove beneficial to his employer’s interests or was encouraged by the employer in the performance of the act or similar acts for the purpose of creating a feeling of good will, or authorized so to do by common practice or custom, compensation may be recovered, since then a casual connection between the employment and the accident may be established.” Schneider, 7 Workmen’s Compensation Text, sec. 1675. As stated by Larson: “If the ultimate effect of claimant’s helping others is to advance his own employer’s work, by removing obstacles to the work or otherwise, it should not matter whether the immediate beneficiary of the helpful activity is a co-employee, an independent contractor, an employee of another employer, or a complete stranger.” 1 Larson’s Workmen’s Compensation Law, sec. 27.21. Decisions in other jurisdictions cited by these text writers, some tending to support plaintiff’s position and others tending to support defendant’s position, disclose factual situations somewhat similar yet different in some material feature from the case now before us. Basically, whether plaintiffs claim is compensable turns upon whether the employee acts for the benefit of his employer to any appreciable extent or whether the employee acts solely for his own benefit or purpose or that of a third person. 241 N.C. at 452, 85 S.E. 2d at 599-600. Upon examination of the facts of the case we think that plaintiff was acting within the scope of defendant’s regulations, — 263 — when under these circumstances he departed on this trip. Through its regulations defendant can be said to have implicity authorized the haul in the manner in which it was carried out. Defendant’s regulations forbade its drivers from carrying unauthorized passengers on hauls. However, exceptions were made to this rule in case of emergencies. What constituted an emergency is not made clear or specified in the regulations contained in the record. Under the regulations, when a driver makes such an exception he is required to turn in information regarding the surrounding circumstances to defendant at the conclusion of the trip. Wyatt testified that it was his intention to comply with defendant’s regulations, and that he intended to notify defendant that plaintiff had accompanied him on the trip upon returning. It can reasonably be said that in these circumstances an emergency situation like that referred to in defendant’s regulations existed. Wyatt had reinjured his back, and the need to depart immediately in order to make a timely arrival in Detroit, along with the unsuccessful efforts to locate the dispatcher or other assistance, ruled out the usual procedures for obtaining permission to engage assistance. This customer required special promptness from defendant’s drivers. Plaintiff stood to benefit personally by accompanying Wyatt, because he was to be dropped off on the return trip to do a personal errand in West Virginia. The record does not show that in an emergency such as this, allowing an unauthorized passenger to perform a personal errand on the return trip would violate defendant’s regulations. In view of the fact that plaintiff was the only driver whom Wyatt could locate who would agree to accompany him, the agreement to deviate from the normal procedure on the return trip certainly appears to have been reasonable. We note that prior to the occurrence of the accident no deviation had been made in the usual route. Based on these facts, we think there was sufficient evidence upon which the Commission could conclude as a matter of law that in accompanying Wyatt on this trip plaintiff was acting within the course of his employment. His actions were in accord with the emergency exception to defendant’s regulations. Therefore, plaintiffs actions were authorized by defendant. We have found that the Commission’s findings of fact were adequately supported by evidence in the record. The facts as found by the Commission, when considered in the light most — 264 — favorable to plaintiff, support the Commission’s ultimate conclusion of law that plaintiff was injured by accident arising out of and in the course of his employment. Affirmed. Judges Vaughn and Becton concur.