{ "id": 8553695, "name": "JOHNNY ENROUGHTY, Employee, Plaintiff v. BLACK INDUSTRIES, INC., Employee, HARTFORD ACCIDENT & INDEMNITY COMPANY, Carrier, Defendants", "name_abbreviation": "Enroughty v. Black Industries, Inc.", "decision_date": "1972-01-12", "docket_number": "No. 717IC708", "first_page": "400", "last_page": "406", "citations": [ { "type": "official", "cite": "13 N.C. App. 400" } ], "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": "160 S.E. 2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550273 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0089-01" ] }, { "cite": "156 S.E. 147", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "opinion_index": 0 }, { "cite": "200 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615880 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/nc/200/0065-01" ] }, { "cite": "165 S.E. 356", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "203 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603948 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/203/0189-01" ] }, { "cite": "5 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "216 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607099 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/216/0517-01" ] }, { "cite": "123 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "122 S.E. 2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572716 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0724-01" ] }, { "cite": "9 S. E. 2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "217 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617345 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/217/0743-01" ] }, { "cite": "167 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547975 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0037-01" ] }, { "cite": "176 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549953 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0291-01" ] }, { "cite": "117 S.E. 2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626303 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0554-01" ] }, { "cite": "162 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553835, 8553878 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0448-01", "/nc-app/1/0448-02" ] }, { "cite": "99 S.E. 2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627497 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0581-01" ] } ], "analysis": { "cardinality": 577, "char_count": 13388, "ocr_confidence": 0.558, "pagerank": { "raw": 2.5916105598991863e-07, "percentile": 0.8186112394969746 }, "sha256": "bfc4a6b9a40ed4d17ef9e925fb0c4ca87bad2f14fa50484dfcc137794af8679a", "simhash": "1:0431ce89ae4e2a75", "word_count": 2278 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Graham concur." ], "parties": [ "JOHNNY ENROUGHTY, Employee, Plaintiff v. BLACK INDUSTRIES, INC., Employee, HARTFORD ACCIDENT & INDEMNITY COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nThe decisive question presented on this appeal is whether the evidence is sufficient to support the finding of fact numbered ten that plaintiff was injured by accident arising out of and in the course of his employment. We hold that the evidence was sufficient to support this finding of fact, the conclusion of law that the plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant employer, and the award entered in this case.\n\u201cThe basic rule is that the words \u2018out of\u2019 refer to the origin or cause of the accident, and that the words \u2018in the course of\u2019 refer to the time, place and circumstances under which it occurred.\u201d Hardy v. Small, 246 N.C. 581, 99 S.E. 2d 862 (1957). See also Harless v. Flynn, 1 N.C. App. 448, 162 S.E. 2d 47 (1968).\nWhether an injury by accident arises out of or in the course of the employment is a mixed question of law and fact. Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E. 2d 476 (1960). This court is bound by the non jurisdictional findings of fact of the Commission, if there is competent evidence to support such findings, but is not bound by its conclusions of law. Priddy v. Cab Co., 9 N.C. App. 291, 176 S.E. 2d 26 (1970).\nThe rule that traveling to and from work on a conveyance furnished by the employer is in the course of employment is applicable to trips to and from lunch. 1 Larson, Workmen\u2019s Compensation Law, \u00a7 15.52. See also Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E. 2d 790 (1969).\n\u201cInjuries sustained by an employee while being transported to or from work in a conveyance furnished by his employer pursuant to an express or implied term of the contract of employment are compensable.\u201d (Emphasis added.) 99 C.J.S., Workmen\u2019s Compensation, \u00a7 235, p. 840. See also Mion v. Marble & Tile Co., Inc., 217 N.C. 743, 9 S. E. 2d 501 (1940).\nBlack had a contract with Carolina to do the work in which the plaintiff was engaged. Black furnished its plow crew the means of transportation to and from the work site because their work was not at a fixed place. Whittington v. Schnierson & Sons, 255 N.C. 724, 122 S.E. 2d 724 (1961). It was customary for the foreman to fix the length of time for lunch and to designate where Black\u2019s truck was to take them during lunch hour, usually to a country store or a cafe chosen by the employees. It was also customary for those who did not wish to ride on Black\u2019s truck to lunch either to remain at the site of the job or to ride on Carolina\u2019s truck with Black\u2019s foreman and Carolina\u2019s inspector. On the date in question, Carolina\u2019s inspector invited Black\u2019s foreman to ride with him, and Black\u2019s foreman invited plaintiff to accompany them. If this alternate means of transportation (on Carolina\u2019s truck) was furnished by Black, the employer, then Black is liable.\nWe hold that the evidence in this case was sufficient for the Commission to find that the transportation to lunch on the Carolina truck had become available, by custom, to Black\u2019s employees on the plow crew when the site was being visited by Carolina\u2019s inspectors (99 C.J.S., Workmen\u2019s Compensation, \u00a7 235); that the Carolina truck ride to lunch was furnished by Black to its employees on the plow crew under the terms of the employment; and that the plaintiff became entitled to the use of the Carolina truck at the invitation of his foreman, as an alternate means of transportation provided by his employer.\nWe hold, therefore, that there was sufficient competent evidence before the Commission to support its findings of fact, and that its conclusions of law and award in this case were proper. See Hardy v. Small, supra; Brewer v. Trucking Co., 256 N.C. 175, 123 S.E. 2d 608 (1962); Smith v. Gastonia, 216 N.C. 517, 5 S.E. 2d 540 (1939); Edwards v. Loving Co., 203 N.C. 189, 165 S.E. 356 (1932); Dependents of Phifer v. Dairy, 200 N.C. 65, 156 S.E. 147 (1930); Martin v. Georgia-Pacific Corp., supra; Williams v. Board of Education, 1 N.C. App. 89, 160 S.E. 2d 102 (1968); 1 Larson, Workmen\u2019s Compensation Law \u00a7 25:00.\nNo prejudicial error is made to appear in appellant\u2019s assignments of error, and the award of compensation herein is affirmed.\nAffirmed.\nJudges Hedrick and Graham concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Battle, Winslow, Scott & Wiley, P.A., by Samuel S. Wood-ley and Robert L. Spencer for plaintiff appellee.", "Teague, Johnson, Patterson, Dilthey & Clay by I. Edward Johnson for defendant appellants." ], "corrections": "", "head_matter": "JOHNNY ENROUGHTY, Employee, Plaintiff v. BLACK INDUSTRIES, INC., Employee, HARTFORD ACCIDENT & INDEMNITY COMPANY, Carrier, Defendants\nNo. 717IC708\n(Filed 12 January 1972)\n1. Master and Servant \u00a7 55\u2014 workmen\u2019s compensation \u2014 definitions of \u201cout of\u201d and \u201cin the course of\u201d\nAs used in the Workmen\u2019s Compensation Act, the words \u201cout of\u201d refer to the origin or cause of the accident, and the words \u201cin the course of\u201d refer to the time, place and circumstances under which it occurred.\n2. Master and Servant \u00a7 55 \u2014 workmen\u2019s compensation\nWhether an injury arises out of or in the course of the employment is a mixed question of law and fact.\n3. Master and Servant \u00a7 97 \u2014 workmen\u2019s compensation \u2014 findings of fact \u2014 appellate review\nThe appellate court is bound by the nonjurisdictional findings of fact of the Industrial Commission, if there is competent evidence to support such findings, but is not bound by its conclusions of law.\n4. Master and Servant \u00a7 62 \u2014 workmen\u2019s compensation \u2014 injuries on way to and from lunch\nThe rule that traveling to and from work on a conveyance furnished by the employer is in the course of employment is applicable to trips to and from lunch.\n5. Master and Servant \u00a7 62 \u2014 workmen\u2019s compensation \u2014 injury on way to lunch\nIn this workmen\u2019s compensation proceeding, plaintiff\u2019s evidence was sufficient to support the Industrial Commission\u2019s determination that injuries sustained by plaintiff in a collision while riding to lunch on a truck owned by the telephone company for which defendant employer was installing underground cables and driven by the telephone company\u2019s inspector occurred by accident arising out of and in the course of his employment, where it tended to show that defendant employer furnished its employees, including plaintiff, transportation to and from the work site and to and from lunch, and that transportation on the telephone company\u2019s truck had by custom become available to defendant\u2019s employees as an alternate means of transportation when their work site was being visited by the telephone company\u2019s inspector.\nAppeal by defendants from an opinion and award of the North Carolina Industrial Commission rendered on 20 May 1971.\nThe plaintiff offered evidence which tended to show that he was a member of a \u201cplow crew\u201d employed by the defendant Black Industries, Inc. (Black). This crew was engaged in burying cable for the Carolina Telephone Company (Carolina) at often isolated rural sites within a radius of 30 miles from Rocky Mount, North Carolina. It was customary for the members of the plow crew to meet in the morning at a service station in Rocky Mount where they would be picked up by their foreman (a Mr. Starling in the present case) and transported to the work site in a Black company vehicle and then returned after the day\u2019s work. The evidence indicates that this vehicle was equipped to carry several passengers.\nWorking at isolated sites along the highway, the men were permitted to bring their lunches from home or they frequently would ride with the foreman in the company truck to a nearby country store or cafe for lunch. If some of the men preferred to go to a nearby country store and others wished to go to a cafe, Black\u2019s truck was usually used to go to the country store and the others would ride in Carolina\u2019s truck with Mr. Sparks, Carolina\u2019s field inspector on the job, if he were present. The evidence indicates that either of these alternatives was \u201ccustomary.\u201d\nOn the day the accident occurred, 3 June 1969, the field inspector from Carolina, Mr. Sparks, was visiting the job site about three miles north of Nashville, North Carolina. The evidence indicates that when Mr. Sparks was at the job site at lunchtime, he frequently would invite the foreman and other members of the crew to accompany him to lunch, and this is what happened on the day in question. Black\u2019s foreman would designate the length of the lunch period, and it varied from time to time; but on 3 June 1969, the foreman specified that they were to take an hour for lunch. The plaintiff Enroughty was one of the members of the crew who chose to accompany the foreman and Mr. Sparks, in a Carolina truck (evidently an ordinary pick-up truck) into Nashville. Some other members of the crew took the Black truck and initially went to a country store for lunch. Enroughty and another Black employee, Milton Joyner, apparently were riding in the bed of the Carolina pickup truck, which was not equipped to carry passengers except the one or two who could be accommodated in its front seat.\nIn or entering Nashville, the Carolina truck was involved in a collision with another vehicle, and Joyner and Enroughty were thrown from the truck. Enroughty suffered extensive head injuries which required prolonged medical attention. The driver of the other vehicle, Odell Parker Thomas, subsequently entered into an approved consent judgment and paid to the present plaintiff $11,500. The parties to the present suit have stipulated that this amount shall be credited, after payment of attorney and medical fees, to the present defendants, should Black be found to be liable.\nOn appeal, the North Carolina Industrial Commission (Commission) adopted as its own the findings of fact, conclusions of law, and award previously made and filed in the case by Deputy Commissioner W. C. Delbridge. The pertinent findings of fact are as follows:\n\u201c1. Plaintiff is a white male, age 60, and was on June 3, 1969, and prior thereto, employed with the defendant employer as a flagman and general laborer. The plaintiff lives on his farm and has farmed most of his life.\n2. The defendant employer does work for the Carolina Telephone Company. They dig ditches along the roadway and install telephone cables etc. Plaintiff was a member of the plow crew. Mr. Starling was the plaintiff\u2019s foreman. On June 3, 1969, the defendant employer was doing work for the Carolina Telephone Company and its employees were working about three miles north of Nashville installing underground telephone cables. The plaintiff was flagging traffic.\n3. Around 12:00 noon on June 3, 1969, the plaintiff\u2019s foreman, Mr. Starling, told the employees of the defendant employer to knock off work and go to lunch. Mr. Sparks, a checker and employee of the Carolina Telephone Company, who was on the job to check the work progress asked Mr. Starling to go with him to lunch at a restaurant in Nashville, North Carolina. Mr. Starling informed his men that there was a country store nearby and they could take the company truck and go there for lunch if they wanted to. He also asked the plaintiff and Mr. Joyner, another employee of the defendant employer, if they wanted to go to the country store or go with him and Mr. Sparks in the Carolina Telephone pickup to Nashville and eat at the restaurant. The plaintiff and Mr. Joyner decided they would go with their foreman and Mr. Sparks to Nashville to the restaurant.\n4. The plaintiff and Mr. Joyner got into the back of the Carolina Telephone pickup truck. Mr. Sparks, an employee of the Carolina Telephone Company, was driving and Mr. Starling, plaintiff\u2019s foreman, was sitting on the right front seat. As the truck driven by Mr. Sparks entered the city limits of Nashville it was struck on the right side by a third party car which ran a stop sign. Plaintiff was thrown out of the truck. His head struck the concrete sidewalk. Plaintiff received serious head injuries and was carried by ambulance to the Park View Hospital in Rocky Mount, and they immediately transferred him to Duke Hospital in Durham.\n5. The defendant employer furnished transportation to its employees going to and from work. It also furnished transportation to its employees on Mr. Starling\u2019s work crew going to and from lunch. The crew plaintiff was working with were working in a rural area and they used the defendant employer\u2019s truck to go to and from lunch. Some of the defendant\u2019s employees went to the country store for lunch, but upon arriving they found the food inadequate and they started to Nashville in the defendant employer\u2019s pickup truck, following the pickup of the Carolina Telephone Company in which the plaintiff was riding.\n6. Sometimes some of the employees of the defendant employer would carry their own lunch, but most of the time the employees would ride to lunch in the defendant employer\u2019s pickup truck. The defendant employer furnished the plaintiff transportation to and from lunch and the plaintiff at the time in question was under the control and supervision of his foreman.\n* * *\n10. Plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant employer on June 3, 1969.\u201d\nBased on these findings, the Deputy Commissioner and the Commission concluded that the plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant employer on 3 June 1969 and awarded compensation as provided in the Act.\nBattle, Winslow, Scott & Wiley, P.A., by Samuel S. Wood-ley and Robert L. Spencer for plaintiff appellee.\nTeague, Johnson, Patterson, Dilthey & Clay by I. Edward Johnson for defendant appellants." }, "file_name": "0400-01", "first_page_order": 424, "last_page_order": 430 }