{ "id": 8527779, "name": "LILLIAN E. MURRAY, Widow of HUGH H. MURRAY, JR., Deceased Employee, and WACHOVIA BANK & TRUST COMPANY, Executor of the Estate of Hugh H. Murray, Jr., Plaintiffs v. ASSOCIATED INSURERS, INCORPORATED, Employer; VIRGINIA MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Murray v. Associated Insurers, Inc.", "decision_date": "1994-05-03", "docket_number": "No. 9310IC5", "first_page": "506", "last_page": "523", "citations": [ { "type": "official", "cite": "114 N.C. App. 506" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "110 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": -1 }, { "cite": "251 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622288 ], "year": 1959, "opinion_index": -1, "case_paths": [ "/nc/251/0047-01" ] }, { "cite": "372 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "749" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526369 ], "year": 1988, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0625-01" ] }, { "cite": "293 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "306 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568216 ], "year": 1982, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0275-01" ] }, { "cite": "152 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "535" } ], "opinion_index": 0 }, { "cite": "269 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563886 ], "year": 1967, "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0393-01" ] }, { "cite": "184 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "279 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571265 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0583-01" ] }, { "cite": "96 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "245 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613205 ], "year": 1957, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0469-01" ] }, { "cite": "401 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "140-41" }, { "page": "140" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522092 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "86-87" }, { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0083-01" ] }, { "cite": "131 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "259 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562493 ], "year": 1963, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0724-01" ] }, { "cite": "117 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1960, "pin_cites": [ { "page": "479" }, { "page": "557-58" }, { "page": "479" } ], "opinion_index": 0 }, { "cite": "253 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626303 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0554-01" ] }, { "cite": "63 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599630 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0088-01" ] }, { "cite": "303 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "183" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523761 ], "year": 1983, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0544-01" ] }, { "cite": "188 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "281 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574679 ], "year": 1972, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0234-01" ] }, { "cite": "364 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "321 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566796 ], "year": 1988, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0350-01" ] }, { "cite": "314 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526784 ], "year": 1984, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0151-01" ] }, { "cite": "264 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "case remanded for additional findings of fact on this same question" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549219 ], "year": 1980, "pin_cites": [ { "parenthetical": "case remanded for additional findings of fact on this same question" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0096-01" ] }, { "cite": "167 N.E. 181", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 0 }, { "cite": "251 N.Y. 90", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1988697 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/ny/251/0090-01" ] }, { "cite": "167 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547975 ], "year": 1969, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0037-01" ] }, { "cite": "110 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1959, "pin_cites": [ { "page": "470", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "251 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622288 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "51", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0047-01" ] }, { "cite": "334 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "77 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520740 ], "year": 1985, "pin_cites": [ { "page": "121" } ], "opinion_index": 1, "case_paths": [ "/nc-app/77/0117-01" ] }, { "cite": "352 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "239" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168083 ], "year": 1987, "pin_cites": [ { "page": "225" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0221-01" ] }, { "cite": "167 N.E. 181", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 1 }, { "cite": "251 N.Y. 90", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1988697 ], "year": 1920, "opinion_index": 1, "case_paths": [ "/ny/251/0090-01" ] }, { "cite": "110 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1959, "pin_cites": [ { "page": "470" } ], "opinion_index": 1 }, { "cite": "251 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622288 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/nc/251/0047-01" ] } ], "analysis": { "cardinality": 1183, "char_count": 39058, "ocr_confidence": 0.75, "pagerank": { "raw": 2.687988060905297e-07, "percentile": 0.8272480364685354 }, "sha256": "8f333b7cbdd1a256332096a257780e3092522c1dcfa3a23e70e3dcd7aba43368", "simhash": "1:e114e91b1c6c039e", "word_count": 6474 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ORR concurs.", "Judge COZORT dissents." ], "parties": [ "LILLIAN E. MURRAY, Widow of HUGH H. MURRAY, JR., Deceased Employee, and WACHOVIA BANK & TRUST COMPANY, Executor of the Estate of Hugh H. Murray, Jr., Plaintiffs v. ASSOCIATED INSURERS, INCORPORATED, Employer; VIRGINIA MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nPlaintiffs appeal from the Industrial Commission\u2019s opinion and award filed 11 August 1992. Defendants also cross assign error to support the Industrial Commission\u2019s opinion and award. After careful review of the briefs, transcripts and record, we reverse and remand to the Full Commission for findings of fact on the question of whether decedent had a concurrent business purpose for travelling to Hound Ears on 27 June 1987.\nI.\nPlaintiffs contend that the Commission erred in finding that \u201ceven if [decedent] had business to conduct on June 28, 1986, he was off duty and not about that business on June 27, 1986, when the collision occurred.\u201d We agree.\n\u201cEmployees whose work entails travel away from the employer\u2019s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown.\u201d Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 41, 167 S.E. 2d 790, 793 (1969). Accordingly, decedent was not \u201coff duty\u201d and was continuously within the course of his employment during the trip on 27 June if decedent was travelling to Hound Ears to conduct business on 28 June. This is true unless it is shown that at the time of the accident decedent had made a distinct departure on a personal errand.\nThe evidence shows that when decedent\u2019s automobile accident occurred, he was traveling on the most direct route from Raleigh to the Hound Ears community in Blowing Rock, North Carolina. In cases where there are both personal and business reasons for making the trip, there is no departure or deviation from employment if the accident occurs while the claimant is on the most direct route to accomplish both the personal and the business objective. 1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 19.21 (1993). Even if the personal objective would have required a detour if it had been reached, there is no deviation if at the time of the accident, the claimant was on the direct route which he would have had to take to reach his business destination. Id. at \u00a7 19.22. Since decedent\u2019s accident occurred on the direct route he would have had to take to reach his business destination in Hound Ears, there was no deviation or departure from his employment. Accordingly, decedent was not \u201coff duty\u201d and was within the course of his employment at the time of his accident on 27 June 1986, if he in fact had business to conduct on 28 June 1986.\nII.\nPlaintiffs further contend that the Commission erred in finding that plaintiffs\u2019 witnesses\u2019 testimony concerning the business-related purpose of decedent\u2019s trip was of \u201cno consequence to the ultimate outcome of this case.\u201d We agree. If the Commission found that plaintiffs\u2019 witnesses\u2019 testimony established that decedent had a business purpose for travelling to Hound Ears on 27 June 1986, under the dual purpose rule, decedent was in the course of his employment during the trip to Hound Ears even though he had additional personal motivations for making the trip as long as he was on the direct route he would have had to take to accomplish the business purpose.\nProfessor Larson summarizes the \u201cdual purpose rule\u201d in his treatise on Workers\u2019 Compensation Law. Under the \u201cdual purpose rule\u201d:\nInjury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.\n1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 18.00 (1993). In Humphrey v. Quality Cleaners & Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959), the North Carolina Supreme Court laid out the test to be applied in determining whether a trip that has both personal and business purposes is compensable under the Act. There the Humphrey Court adopted Judge Cardozo\u2019s test set out in Marks Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1920).\nWe do not say that the service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must b\u00e9 permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates the necessity for travel, such is in the course of his employment, though he is serving at the same time some purpose of his own. ... If however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel was then personal, and personal the risk.\nHumphrey v. Quality Cleaners & Laundry, 251 N.C. 47, 51, 110 S.E.2d 467, 470 (1959) (emphasis added). Under this test, a trip is personal if the trip would have gone forward even if the business errand had been dropped and the trip would have been cancelled upon the failure of the private purpose. In this way, the work would have had no part in creating the necessity for travel. The dual purpose rule does not require that the business purpose be the primary purpose for making the trip. The dual purpose rule only requires that the business purpose be a concurrent cause of the trip. 1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 18.13 (1993). A concurrent cause is a cause which would have occasioned the making of the trip even if the private mission had been canceled. Id.\nIt is clear that the Full Commission did not properly apply the dual purpose rule to the facts of this case. The Full Commission found in its opinion and award that:\n[E]ven if the hearsay evidence was allowed to the extent that it showed a purpose of plaintiff\u2019s trip was to conduct business on the weekend in question, at the time of [decedent\u2019s] accident, he was in route to a purely non-business related party. Thus, even if [decedent] had business to conduct on June 28, 1986, he was off duty and not about that business on June 27, 1986 when the collision occurred. ... At the time and place of the collision, [decedent] was not in the course of his employment, even if he would have been at some time the following day.\nUnder the dual purpose rule, if a concurrent purpose of decedent\u2019s trip to Hound Ears on 27 June was to conduct business there on 28 June, decedent was within the course of his employment at the time of the accident on 27 June. Accordingly, the Commission erred in finding that testimony concerning the business nature of decedent\u2019s trip was irrelevant to the ultimate outcome of this case. Whether decedent had business appointments on 28 June 1986 is crucial here because that fact determines whether decedent had a concurrent business purpose for travelling to Hound Ears on 27 June 1986.\nIII.\nPlaintiffs contend that the Commission erred in excluding plaintiffs\u2019 evidence regarding the business-related purpose of decedent\u2019s trip. Plaintiffs offered the testimony of five witnesses to show that decedent had made appointments on 28 June 1986 with several of defendant-employer\u2019s policyholders at their homes in Hound Ears to discuss their insurance policies. These five witnesses were: 1) Mrs. Lillian E. Murray, decedent\u2019s widow, 2) Mr. Thomas M. Gow, 3) Ms. Helen Agnes Cushing, 4) Ms. Jean M. Kelso and 5) Ms. E. Tracy Murray, decedent\u2019s daughter.\nDefendants objected to all evidence in these witnesses\u2019 testimony regarding the purpose of decedent\u2019s trip to Hound Ears. The Deputy Commissioner in his opinion and award sustained defendants\u2019 objections to decedent\u2019s widow\u2019s testimony and also sustained defendants\u2019 objection to similar statements made by the other witnesses \u201cto the extent that they do not conform to the North Carolina Rules of Evidence.\u201d As we have already discussed, the Full Commission, acting under an erroneous application of the law, did not consider plaintiffs\u2019 witnesses\u2019 testimony to be relevant to the ultimate outcome of the case and did not address the issue of whether the Deputy Commissioner properly excluded the witnesses\u2019 testimony.\nWe conclude that the testimony of Mrs. Lillian Murray, Ms. Helen Agnes Cushing and Ms. E. Tracy Murray should have been admitted into evidence. Mrs. Lillian Murray, decedent\u2019s widow, testified at the hearing that her husband was coming to Hound Ears on business and that he had clients to call on to deliver policies. When defense counsel asked Mrs. Murray on cross examination how she knew decedent had clients to see that weekend, Mrs. Murray responded that \u201cHe [decedent] told me before I left home that he had an appointment and that was the reason for going that weekend.\u201d Ms. Cushing testified in her deposition that decedent told her on the telephone regarding the delivery of her insurance policy that \u201cI\u2019m coming to Hound Ears on Saturday, and I will take care of it. I have it with me. I will have it with me.\u201d Finally, Ms. E. Tracy Murray, decedent\u2019s daughter, testified in her deposition that on the day of the accident decedent told her that he had \u201ccalls\u201d to make in Hound Ears over the weekend in addition to attending the dinner party that Friday evening. Ms. Murray went on to explain that she knew that making \u201ccalls\u201d meant calling on customers.\nPlaintiffs offered these witnesses\u2019 statements to show that decedent also intended to conduct business in Hound Ears on the weekend of 27-28 June 1986. Under Rule 803(3) of the North Carolina Rules of Evidence, a statement of the declarant\u2019s then existing state of mind, such as intent, plan, motive, or design is admissible as an exception to the hearsay rule. G.S. 8C-1, Rule 803(3). Decedent\u2019s statements to his widow, his daughter, and Ms. Cushing tend to show decedent\u2019s intent or motive in travelling to Hound Ears on 27 June 1986. Accordingly, their testimony is admissible for that purpose.\nIV.\nIn sum, the Full Commission made an error of law in concluding that whether decedent had business appointments on 28 June 1986 was irrelevant since decedent was on his way to the dinner party at the time of the accident. As we have previously discussed, decedent\u2019s injuries and resulting death are compensable under the dual purpose rule if decedent had a concurrent business purpose for travelling to Hound Ears on 27 June 1986. Since plaintiffs\u2019 right to compensation depends upon whether decedent had a concurrent business purpose for travelling to Hound Ears on 27 June 1986, we remand so that the Full Commission may make specific findings of fact on this question. See Bee v. Yates Aluminum Window Co., Inc., 46 N.C. App. 96, 264 S.E.2d 368 (1980) (case remanded for additional findings of fact on this same question).\nDefendants contend that the findings of fact and conclusions of law made by the Deputy Commissioner and adopted by the Full Commission are sufficient to support the Commission\u2019s opinion and award. We disagree. When the Commission finds facts or fails to find facts under a misapprehension of the law, the case should be remanded so that the evidence can be considered in its true legal light. Mills v. Mills, 68 N.C. App. 151, 158, 314 S.E.2d 833, 838 (1984). Here, the Deputy Commissioner made an error of law in excluding and refusing to consider plaintiffs\u2019 witnesses\u2019 testimony concerning decedent\u2019s business appointments on the weekend of 27 June. The Full Commission, however, under a misapprehension of the dual purpose rule, regarded plaintiffs\u2019 evidence relating to decedent\u2019s business purpose as irrelevant to its final decision. The Full Commission erroneously assumed that even if plaintiffs\u2019 evidence excluded by the Deputy Commissioner was allowed to the extent that it showed a business purpose, decedent was not in the course of his employment because he was off duty and on his way to a dinner party. We have already discussed, supra, how that rationale is erroneous. Nevertheless, the Commission adopted the Deputy Commissioner\u2019s opinion and award. Since the Full Commission adopted the Deputy Commissioner\u2019s opinion and award under a misapprehension of the dual purpose rule, we vacate the opinion and award and remand this case to the Full Commission to apply the proper legal standard to the admissible evidence.\nV.\nDefendants cross assign error and- contend that even if decedent\u2019s injuries arose in the course of his employment, his injuries did not \u201carise out of\u201d his employment. An injury is compensable under the Act if it results from an \u201caccident arising out of and in the course of the employment.\u201d G.S. 97-2(6). \u201cWhile often interrelated, the concepts of \u2018arising out of\u2019 and \u2018in the course of\u2019 the employment are distinct requirements, and a claimant must establish both to receive compensation.\u201d Roberts v. Burlington Industries, 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988). \u201cAn accident occurring during the course of an employment . . . does not ipso facto arise out of it.\u201d Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 354 (1972). An injury arises out of the employment when there is a causal connection between the employment and the injury. Patterson v. Gaston County, 62 N.C. App. 544, 546, 303 S.E.2d 182, 183 (1983).\nHere, medical records and expert testimony indicated that decedent also suffered a stroke on the day of the accident. Both medical experts who testified at the hearing testified that it was impossible to tell whether decedent\u2019s stroke occurred before the accident or whether the stroke occurred as a result of the accident. Defendants argue that if the stroke caused the accident, decedent\u2019s injuries resulting from the accident were unrelated to his employment. We disagree.\nWhen an employee\u2019s idiopathic condition is the sole cause of the injury, the injury does not arise out of the employment. Vause v. Vause Equipment Co., 233 N.C. 88, 63 S.E.2d 173 (1951). However, \u201c[w]here any reasonable relationship to the employment exists, or employment is a contributory cause, the court is justified in upholding the award as \u2018arising out of employment.\u2019 \u201d Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960).\nIn Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E.2d 476 (1960), the plaintiff sustained severe injuries when his vehicle collided with a pole. There the plaintiff was returning to his employer\u2019s place of business from a service call when he \u201cblacked out,\u201d lost control of his vehicle, and ran into a pole. Our Supreme Court held that the plaintiff\u2019s accident arose out of his employment even though his blackout caused the accident.\nTwo circumstances, we think, serve to fix liability on the defendants in this case: First, a blackout to which the claimant had a predisposition; second, the blackout occurred at the time and place the claimant\u2019s duties required him to be driving an automobile. The combination of these two produced the accident. In the light of our decisions, the plaintiff\u2019s injury may be said to arise out of and in the course of his employment.\nId. at 557-58, 117 S.E.2d at 479.\nHere, there is no direct evidence of record that decedent\u2019s stroke caused the accident. If the cause of an employee\u2019s injury in the course of his employment is unknown and the Commission finds that the injury arose out of the employment, an award will be sustained. Cole v. Guilford County, 259 N.C. 724, 727, 131 S.E.2d 308, 311 (1963). However, even assuming arguendo that decedent\u2019s stroke did cause the accident, under Allred, supra, decedent\u2019s accident arose out of his employment if decedent was in the course of his employment at the time of the accident. Accordingly, if the Commission on remand determines that decedent was in the course of his employment at the time of the accident, we hold that decedent\u2019s accident arose out of his employment.\nDefendants next contend that Mrs. Lillian Murray, decedent\u2019s widow, never properly filed a claim for decedent\u2019s death benefits under the Act and that her claim for death benefits should be dismissed under G.S. 97-24. G.S. 97-24 requires that claims be filed within two years after the date of the accident in order to obtain benefits under the Act. Failure to timely file a claim is a jurisdictional bar and cannot ordinarily be overcome by either waiver or estoppel. Reinhardt v. Women\u2019s Pavilion, Inc., 102 N.C. App. 83, 86-87, 401 S.E.2d 138, 140-41 (1991).\nThe Industrial Commission\u2019s Form No. 18 is required to institute a claim under G.S. 97-24. Defendants contend that Mrs. Murray never filed a claim for death benefits with the Commission because her attorney, Mr. Teague, signed Form No. 18 on behalf of Wachovia Bank & Trust Company as executor rather than on behalf of Mrs. Murray as dependent. Defendants argue that the executor of decedent\u2019s estate is not a proper claimant for death benefits when there are dependents available to bring the claim. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 476, 96 S.E.2d 438, 444 (1957). Accordingly, defendants contend that since plaintiff\u2019s attorney did not sign Form No. 18 on Mrs. Murray\u2019s behalf, Mrs. Murray did not file a claim for death benefits within the two year jurisdictional requirement of G.S. 97-24. We disagree.\nIn Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296 (1971), the Supreme Court held that a father\u2019s right to participate in his son\u2019s death benefits was not barred by his failure to file a claim. In Smith, the insurer filed a request for hearing with the Commission pursuant to G.S. 97-83 to determine whether the mother or father was entitled to their son\u2019s death benefits. The Court said that the Commission had jurisdiction at the hearing to determine the rights of the father even though he did not file a claim. Id. at 587, 184 S.E.2d at 298. Accordingly, we conclude under the holding of Smith v. Allied Exterminators, supra, that even if Mrs. Murray did not technically file a claim for decedent\u2019s death benefits, the Commission had jurisdiction to determine her rights to receive death benefits if the Commission otherwise had jurisdiction to hear the claim.\nHere, the Commission acquired jurisdiction when the executor of decedent\u2019s estate filed a claim for decedent\u2019s \u201c[h]ead and body injuries resulting in unconsciousness and eventual death.\u201d Decedent\u2019s accident occurred on 27 June 1986. The claim was filed on 22 June 1988, within two years of decedent\u2019s accident. G.S. 97-24 only requires that \u201ca claim be filed with the Industrial Commission within two years after the accident.\u201d The Commission obtains jurisdiction in the case once a claim is timely filed. Reinhardt v. Women\u2019s Pavilion, Inc., 102 N.C. App. 83, 86-87, 401 S.E.2d 138, 140 (1991); Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 396, 152 S.E.2d 533, 535 (1967). Accordingly, we hold that the Commission had jurisdiction to hear the claim for decedent\u2019s death benefits and to determine Mrs. Murray\u2019s rights under the Act to receive death benefits. \u201cThe Worker\u2019s Compensation Act should be liberally construed whenever appropriate so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions.\u201d Deese v. Lawn and Tree Expert Co., 306 N.C. 275, 277, 293 S.E.2d 140, 143 (1982). This cross-assignment of error is overruled.\nFinally, defendants contend that plaintiffs did not meet their burden of proof in showing that decedent\u2019s death was caused by the accident on 27 June 1986. Defendants contend that the immediate cause of decedent\u2019s death was pneumonia and that plaintiffs have not shown that decedent contracted pneumonia because of the accident. We disagree.\n\u201cThe Commission\u2019s findings of fact on the issue of causation are conclusive if supported by competent evidence, even where the evidence is conflicting.\u201d Lettley v. Trash Removal Service, 91 N.C. App. 625, 628, 372 S.E.2d 747, 749 (1988). There is ample evidence here to support the Commission\u2019s finding. The evidence in the record shows that decedent sustained numerous injuries as a result of the accident. Decedent sustained a hip fracture that could not be surgically repaired, multiple fragment fractures of the right proximal head of the fibula and tibula which later became infected, rib fractures which led to pulmonary contusions and collapse of the lung, and a closed head injury which affected his mental and motor status. Decedent was bedridden and could not walk or take care of himself following the accident. Decedent was institutionalized in the hospital and thereafter in a nursing home from the day of his accident until his death on 5 September 1987.\nAlthough decedent died from pneumonia, both medical experts who testified at the hearing testified that decedent\u2019s injuries from the accident led to his contracting pneumonia. Dr. Wells Edmundson, the medical director of the nursing home where decedent was institutionalized after the accident, testified that decedent\u2019s condition as a result of the accident, particularly his collapsed lung, his use of a feeding tube, and his bedridden status, significantly increased his risk of contracting pneumonia. Dr. William J. Senter, an expert in internal medicine, testified that \u201cthe pneumonia that he [decedent] later developed was inevitable from his condition.\u201d Both doctors testified that in their expert opinions, decedent\u2019s pneumonia and resulting death were caused by complications arising from the injuries decedent sustained in the accident on 27 June 1986. Accordingly, we conclude that there is sufficient competent evidence here to support the Commission\u2019s finding of causation. This cross assignment of error is without merit.\nVI.\nFor the reasons stated we vacate and remand to the Full Commission for additional proceedings consistent with this opinion.\nVacated and remanded.\nJudge ORR concurs.\nJudge COZORT dissents.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge COZORT\ndissenting.\nI respectfully dissent.\nThe majority has concluded that this matter must be remanded \u201cfor findings of fact on the question of whether decedent had a concurrent business purpose for travelling to Hound Ears on 27 June 1987.\u201d I do not believe such remand is necessary, because I find the Industrial Commission has resolved the determinative issue presented.\nJudicial review of appeals from the Industrial Commission is limited to two questions: (1) was there any competent evidence to support the Commission\u2019s findings? and (2) do the findings of the Commission justify its legal conclusions and decision? McBride v. Peony Corp., 84 N.C. App. 221, 225, 352 S.E.2d 236, 239 (1987). The Commission\u2019s findings of fact are conclusive on appeal, even if there is evidence which would support a contrary finding. Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 121, 334 S.E.2d 392 (1985).\nThe evidence below obviously requires application of the \u201cdual purpose rule,\u201d which the majority acknowledges. What the majority fails to acknowledge is that the Commission resolved the factual issue presented under the dual purpose rule. In Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959), our Supreme Court said:\n\u201cThe test in brief is this: If the work of the employee creates the necessity for travel, such is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel was then personal, and personal the risk.\u201d\nId. at 51, 110 S.E.2d at 470 (quoting Marks\u2019 Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181).\nIn Finding of Fact 18, Deputy Commissioner W. Joey Barnes found, in a finding adopted by the Full Commission:\n18. There was no employment-related purpose which created the necessity for Mr. Murray\u2019s trip on 27 June 1986. Mr. Murray was traveling to Hound Ears for a social and relaxing weekend with his wife. Mr. Murray\u2019s work did not create the necessity for travel.\nIn their brief, plaintiffs have failed to challenge that crucial finding. Even if they had, there is evidence to support the finding. We are thus bound by that finding.\nIn his conclusions of law, Deputy Commissioner Barnes concluded, in a conclusion adopted by the Full Commission:\n5. Assuming arguendo that the \u201cdual purpose rule\u201d is applicable to the present case, inasmuch as Mr. Murray\u2019s trip would have been made despite the failure of any business purpose for the weekend in question and would have been dropped in the event of the failure of the private purpose, Mr. Murray\u2019s trip was a personal trip and, therefore, Mr. Murray\u2019s death as a result of the collision on 27 June 1986 is not compensable under the North Carolina Workers\u2019 Compensation Act. Id.; N.C.G.S. \u00a7 97-2(6).\nPlaintiffs have not contested that conclusion of law, which controls the key issue in the case. We should not get sidetracked by the Full Commission\u2019s confusing references to the decedent\u2019s purpose in meeting his wife for dinner. We should disregard that language as surplusage, recognize that Deputy Commissioner Barnes resolved the dual purpose rule issue presented by the evidence, and affirm the Commission\u2019s decision to adopt the Opinion and Award of Barnes. I see no useful purpose in remanding the matter for findings on an issue already resolved by the Commission. I vote to affirm.", "type": "dissent", "author": "Judge COZORT" } ], "attorneys": [ "Teague, Campbell, Dennis & Gorham, by C. Woodrow Teague and George W. Dennis III, for plaintiff-appellants.", "Young, Moore, Henderson & Alvis P.A., by B. T. Henderson, II and J. A. Webster, III, for defendant-appellees." ], "corrections": "", "head_matter": "LILLIAN E. MURRAY, Widow of HUGH H. MURRAY, JR., Deceased Employee, and WACHOVIA BANK & TRUST COMPANY, Executor of the Estate of Hugh H. Murray, Jr., Plaintiffs v. ASSOCIATED INSURERS, INCORPORATED, Employer; VIRGINIA MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. 9310IC5\n(Filed 3 May 1994)\n1. Workers\u2019 Compensation \u00a7 152 (NCI4th) \u2014 workers\u2019 compensation-trip combining work and personal business \u2014 automobile accident \u2014 decedent not off duty \u2014 trip within course of employment\nIn an action to recover death benefits under N.C.G.S. \u00a7 97-38 where decedent was in a collision on his way from his primary residence in Raleigh to his home in Hound Ears for a week-end during which he planned to go to a dinner party and to call on customers, among other activities, the Industrial Commission erred in finding that, even if decedent had business to conduct on 28 June 1986, he was off duty and not about that business on 27 June 1986 when the collision in which he was injured occurred, since decedent\u2019s accident occurred on the direct route he would have had to take from Raleigh to reach his destination in Hound Ears; there was no deviation or departure from his employment; and accordingly decedent was not \u201coff duty\u201d and was within the course of his employment at the time of his accident on 27 June 1986, if he in fact had business to conduct on 28 June 1986.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 294.\n2. Workers\u2019 Compensation \u00a7 152 (NCI4th)\u2014 workers\u2019 compensation-decedent on business trip \u2014dual purpose rule \u2014 evidence not considered \u2014 error\nIn an action to recover death benefits under N.C.G.S. \u00a7 97-38, the Industrial Commission erred in finding that plaintiffs\u2019 witnesses\u2019 testimony concerning the business related purpose of decedent\u2019s trip was of \u201cno consequence to the ultimate outcome of this case,\u201d since, if the Commission found that plaintiffs\u2019 witnesses\u2019 testimony established that decedent had a business purpose for traveling from Raleigh to Hound Ears on 27 June 1986, under the dual purpose rule, decedent was in the course of his employment during the trip to Hound Ears even though he had additional personal motivations for making the trip as long as he was on the direct route he would have had to take to accomplish the business purpose.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 294.\n3. Workers\u2019 Compensation \u00a7 387 (NCI4th) \u2014 decedent killed on trip \u2014 trip for business or personal reasons \u2014 decedent\u2019s statements to others \u2014admissibility\nIn an action to recover death benefits under N.C.G.S. \u00a7 97-38 where there was a question as to whether decedent traveled from Raleigh to Hound Ears to conduct business or purely for personal reasons, decedent\u2019s statements to his wife, daughter, and another customer tending to show his intent or motive in travelling to Hound Ears was admissible under the state of mind exception to the hearsay rule set forth in N.C.G.S. \u00a7 8C-1, Rule 803(3).\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 582-585.\n4. Workers\u2019 Compensation \u00a7 115 (NCI4th|\u2014 automobile accident\u2014 stroke \u2014cause of accident unknown \u2014death arising out of employment\nAlthough medical experts testified that it was impossible to tell whether a stroke suffered by decedent occurred before his automobile accident and was thus a cause of the accident or whether the stroke occurred as a result of the accident, decedent\u2019s accident arose out of his employment if the Industrial Commission finds that decedent was in the course of his employment at the time of the accident.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 269, 271.\n5. Workers\u2019 Compensation \u00a7 363 (NCI4th)\u2014 death benefits for employee \u2014 claim filed by executor but not widow \u2014 jurisdiction of Commission\nEven if decedent\u2019s widow did not technically file a claim for decedent\u2019s death benefits, the Industrial Commission had jurisdiction to determine her rights to receive death benefits if the Commission otherwise had jurisdiction to hear the claim, since the Commission acquired jurisdiction when the executor of decedent\u2019s estate filed a claim for decedent\u2019s injuries which ultimately resulted in death within two years of the accident.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 554, 557.\n6. Workers\u2019 Compensation \u00a7 114 (NCI4th)\u2014 death of employee \u2014 cause of death \u2014sufficiency of evidence\nThough the immediate cause of decedent\u2019s death was pneumonia, there was sufficient evidence to support the Industrial Commission\u2019s finding that decedent died as a result of injuries received in an automobile accident.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 269, 271.\nJudge COZORT dissenting.\nAppeal by plaintiffs from opinion and award of the North Carolina Industrial Commission filed 11 August 1992. Heard in the Court of Appeals 17 November 1993.\nDecedent Hugh H. Murray Jr. was the founder of Associated Insurers, Inc. He sold the company in 1982 to five coworkers but continued to work as an employee of the company for a salary plus an automobile allowance and operating expenses. On Friday 27 June 1986, decedent was severely injured in a car accident on his way from Raleigh to Hound Ears, North Carolina. Decedent died on 5 September 1987 as a result of his injuries. Plaintiffs filed a claim with the Industrial Commission for death benefits under G.S. 97-38. After a hearing, the Deputy Commissioner entered an opinion and award denying plaintiffs\u2019 claims for death benefits. The relevant portions of the Deputy Commissioner\u2019s opinion and award are as follows:\nEvidentiary Ruling\nPlaintiff\u2019s objection to Defendants\u2019 Documentary Evidence, dated 22 February 1991, is SUSTAINED. The undersigned\u2019s ruling sustaining defendants\u2019 objection to testimony by Mrs. Lillian Murray about statements by her husband that he was going to conduct business at Hound Ears on the weekend of 27 June 1986, remains unchanged and defendants\u2019 objections to such statements made by other witnesses, to the extent that they do not conform to the North Carolina Rules of Evidence, are Sustained as well.\nFindings of Fact\n3. Hugh H. Murray, Jr. married Lillian E. Murray in 1960. They lived together as husband and wife from then through the date of his death on 5 September 1987.\n4. Mr. Murray was the founder of Associated Insurers, Incorporated, an independent insurance agency. In 1982 he sold Associated Insurers, Incorporated to Robert Guthrie, Durant Vick, Robert King, William Aldridge and Conner Murray.\n5. On 27 June 1986, Hugh H. Murray, Jr. was an employee of Associated Insurers, Incorporated. At that time, and at his death, he was being paid at the annual rate of $25,000.00, plus an expense account of $400.00 per month automobile allowance, and incidental expenses associated with his automobile, including tires, gas and oil.\n6. After his sell [sic] of Associated Insurers, Incorporated to the five new owners, Mr. Murray\u2019s account responsibilities decreased substantially, but he still had various personal accounts assigned to him.\n7. Mr. Murray\u2019s practice in dealing with the servicing of the personal accounts assigned to him was to meet personally with his clients to discuss his recommendations for changes and any additional insurance they might desire, as well as to personally deliver the insureds\u2019 policies and bills for such policies. Mr. Murray\u2019s practice of meeting personally with the insureds, however, was not necessary for the accomplishment of his business mission of selling insurance.\n8. Mr. Murray\u2019s permanent residence was in Raleigh, North Carolina but Mr. Murray and his wife, Lillian Murray, also kept a home in Hound Ears, North Carolina. They maintained the home in Hound Ears for many years prior to 27 June 1986.\n9. The home in Hound Ears was located in a scenic resort community with a country club to which Mr. Murray belonged. The Murray\u2019s [sic] participated in an extremely active social life in the Hound Ears area.\n10. Mr. Murray would spend almost every other, if not every, weekend at the Hound Ears home.\n11. As of 27 June 1986, Mrs. Murray had arrived at the home in Hound Ears and Mr. Murray, as usual, intended to join her in Hound Ears for a relaxing weekend. \u2022\n12. Since Mr. Murray was going to be in Hound Ears the weekend beginning 27 June 1986, Mr. Murray contacted three of his customers in the Hound Ears area and made arrangements to meet with them on 28 June or later.\n13. Pursuant to plans that had been arranged for Mr. Murray by his wife, Mr. Murray intended to meet her in Blowing Rock, North Carolina on the evening of 27 June 1986, at the home of Mr. William Mauney.\n14. While driving from Raleigh to his destination in Blowing Rock to attend a dinner party at the Mauney home, Mr. Murray was involved in a motor vehicle accident, which eventually resulted in his death on 5 September 1987.\n15. Mr. Murray was not going to be conducting any employment-related activities at the dinner party on 27 June 1986.\n16. At the time of the collision, Mr. Murray was off-duty and was not engaged in any employment-related activities. The drive to Blowing Rock on the evening of 27 June 1986 was not for defendant-employer\u2019s benefit but for Mr. Murray\u2019s own benefit.\n17. At the time of the collision, the insurance-related documentation for the customers with which Mr. Murray had made appointments later in the weekend, was not in the state of completion and was not in a state of readiness for delivery by Mr. Murray. Mr. Murray was not going to be delivering any insurance documentation on the weekend of 27 June 1986.\n18. There was no employment-related purpose which created the necessity for Mr. Murray\u2019s trip on 27 June 1986. Mr. Murray was traveling to Hound Ears for a social and relaxing weekend with his wife. Mr. Murray\u2019s work did not create the necessity for travel.\nThe foregoing findings of fact and conclusions of law engender the following additional\nConclusions of Law\n1. On 27 June 1986, Hugh H. Murray, Jr. was an employee of defendant-employer, Associated Insurers, Incorporated. N.C.G.S. \u00a7 97-2(2).\n2. On 27 June 1986, Mr. Murray\u2019s average weekly'wage yielded the maximum compensation rate of $808.00 per week. N.C.G.S. \u00a7 97-2(5).\n3. On 27 June 1986, while Mr. Murray was driving to Blowing Rock to attend a dinner party and spend time with his wife at their home in Hound Ears, he was not in an employment-related activity and the collision and injuries sustained did not arise out of and in the course of his employment with defendant-employer. N.C.G.S. \u00a7 97-2(6).\n4. Plaintiffs argue that the \u201cdual purpose rule\u201d is applicable to the facts presented in this case. The \u201cdual purpose rule,\u201d in part, states that when a trip serves both personal and business purposes, it is a personal trip if the trip would have been made despite the failure of the business purpose and would have been dropped in the event of the failure of the private purpose, though the business errand remained undone. Humphrey v. Quality Cleaners and Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959).\n5. Assuming arguendo that the \u201cdual purpose rule\u201d is applicable to the present case, inasmuch as Mr. Murray\u2019s trip would have been made despite the failure of any business purpose for the weekend in question and would have been dropped in the event of the failure of the private purpose, Mr. Murray\u2019s trip was a personal trip and, therefore, Mr. Murray\u2019s death as a result of the collision on 27 June 1986 is not compensable under the North Carolina Workers\u2019 Compensation Act. Id.; N.C.G.S. \u00a7 97-2(6).\nBased upon the foregoing findings of fact and conclusions of law, the undersigned enters the following\nOrder\n1. Under the law, plaintiff\u2019s claim must be, and the same is hereby, DENIED.\nPlaintiffs appealed to the Full Commission and the Full Commission entered the following opinion and award:\nThe undersigned have reviewed the record with reference to the errors alleged and find no adequate ground to amend the award.\nThe Findings of Fact and Conclusions of Law, as found by [the Deputy Commissioner], are supported by the competent evidence presented.\nThe sustained hearsay objections with regard to Mrs. Lillian Murray\u2019s testimony and the testimony of other witnesses as to the business purpose of plaintiff\u2019s trip are of no consequence to the ultimate outcome of this case. Thus, the need to address this issue becomes moot.\nThe Full Commission finds that, even if the hearsay evidence was allowed to the extent that it showed a purpose of plaintiff\u2019s trip was to conduct business on the weekend in question, at the time of [decedent\u2019s] accident, he was in route to a purely non-business related party. Thus, even if [decedent] had business to conduct on June 28, 1986, he was off duty and not about that business on June 27, 1986, when the collision occurred. He was on his way to a dinner party in Blowing Rock (not Hound Ears, where his business was to be conducted), and his purpose was completely a personal one. At the time and place of the collision, [decedent] was not in the course of his employment, even if he would have been at some time the following day.\nIn view of the foregoing, the Full Commission ADOPTS as its own the Opinion and Award as filed.\nPlaintiffs appeal from the opinion and award of the Industrial Commission. Defendants bring cross assignments of error to support the judgment of the Industrial Commission.\nTeague, Campbell, Dennis & Gorham, by C. Woodrow Teague and George W. Dennis III, for plaintiff-appellants.\nYoung, Moore, Henderson & Alvis P.A., by B. T. Henderson, II and J. A. Webster, III, for defendant-appellees." }, "file_name": "0506-01", "first_page_order": 534, "last_page_order": 551 }