{ "id": 8552678, "name": "ALMA ATKINS ROBERTSON, Widow of Thomas Roosevelt Robertson, Deceased v. SHEPHERD CONSTRUCTION COMPANY and CONTINENTAL CASUALTY INSURANCE COMPANY", "name_abbreviation": "Robertson v. Shepherd Construction Co.", "decision_date": "1979-12-18", "docket_number": "No. 7910IC250", "first_page": "335", "last_page": "339", "citations": [ { "type": "official", "cite": "44 N.C. App. 335" } ], "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": "191 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576576, 8576547, 8576528, 8576562, 8576538 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0755-05", "/nc/281/0755-03", "/nc/281/0755-01", "/nc/281/0755-04", "/nc/281/0755-02" ] }, { "cite": "189 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549490, 8549459 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0246-02", "/nc-app/15/0246-01" ] }, { "cite": "117 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "253 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626777 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/253/0670-01" ] }, { "cite": "229 S.E. 2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548483 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0204-01" ] }, { "cite": "1 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628982 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0227-01" ] }, { "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": "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": "223 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571946, 8571836, 8571920, 8571896, 8571868 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0615-05", "/nc/289/0615-01", "/nc/289/0615-04", "/nc/289/0615-03", "/nc/289/0615-02" ] }, { "cite": "221 S.E. 2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "28 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548495 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/28/0286-01" ] }, { "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": 483, "char_count": 8679, "ocr_confidence": 0.833, "pagerank": { "raw": 2.3075874670173528e-07, "percentile": 0.7880930509848257 }, "sha256": "2870a1e4f070088b2458100d6c50ae37718a4fd1ac65a54074284cbd4ed7c353", "simhash": "1:be41abcebe796e2e", "word_count": 1441 }, "last_updated": "2023-07-14T22:44:31.887789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges VAUGHN and WEBB concur." ], "parties": [ "ALMA ATKINS ROBERTSON, Widow of Thomas Roosevelt Robertson, Deceased v. SHEPHERD CONSTRUCTION COMPANY and CONTINENTAL CASUALTY INSURANCE COMPANY" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nThe hearing commissioner and the full commission concluded that Thomas Robertson died from an injury by accident arising out of and in the course of his employment. This conclusion of law is based on two findings of fact:\n15. Decedent was in the course of his employment with defendant-employer while driving the company-owned truck on July 16, 1976. There was no reason to use the company truck for transportation home because his wife was present with their personal car ready to take him home. Decedent was scheduled to work the next day, Saturday, July 17, 1976. He had permission to drive the company truck home and was traveling the route normally traveled going to and from work.\n24. Decedent sustained an injury by accident arising out of and in the course of his employment on July 16, 1976 which resulted in his death. Decedent\u2019s death was not proximately caused by intoxication.\nDefendants argue that there is no evidence in the record to support these crucial findings. We agree with defendants and therefore reverse the ruling of the full commission.\nAn absolutely essential element for recovery under the N.C. Workers\u2019 Compensation Act is that injuries be the result of an \u201caccident arising out of and in the course of the employment, . . ..\u201d N.C. Gen. Stat. 97-2(6). As a general rule, injuries sustained in accidents occurring while the employee is going to or coming from work are not compensable under the Act. Hardy v. Small, 246 N.C. 581, 99 S.E. 2d 862 (1957); Insurance Co. v. Curry, 28 N.C. App. 286, 221 S.E. 2d 75, disc. rev. denied, 289 N.C. 615, 223 S.E. 2d 396 (1976). There is, however, an exception to the general rule: injuries sustained by an employee while going to or from work are considered to have arisen in the course of his employment and are compensable if the employer is under a contractual duty to provide transportation for his employees. Whittington v. Schnierson & Sons, 255 N.C. 724, 122 S.E. 2d 724 (1961); Smith v. Gastonia, 216 N.C. 517, 5 S.E. 2d 540 (1939); Insurance Co. v. Curry, supra.\nA further requirement under this exception is that this provision for transportation must be an incident to the contract of employment. Lassiter v. Telephone Co., 215 N.C. 227, 1 S.E. 2d 542 (1939); Harris v. Farrell, Inc., 31 N.C. App. 204, 229 S.E. 2d 45 (1976). The transportation must be provided as a matter of right; if it is merely permissive, gratuitous, or a mere accommodation, the employee is not in the course of employment. Jackson, Long, Johnson, Evans, Swann v. Bobbitt, 253 N.C. 670, 117 S.E. 2d 806 (1961); Lassiter v. Telephone Co., supra; Insurance Co. v. Curry, supra. In order to recover death benefits in this case, claimant must show that the deceased comes within the exception to the general rule.\nThere is no specific finding by the commission that deceased\u2019s employer had provided him transportation as an incident to his contract of employment. The absence of such a finding is not fatal to the decision; however, the absence of any competent evidence to support this fact does preclude recovery by claimant. In actuality, all the evidence directly contradicts a finding that transportation was provided the deceased as an incident to his employment contract. Michael Wayne Hancock, who was assistant superintendent for Shepherd Construction Company at the time of the accident, testified at the hearing. In response to a question concerning the policy of Shepherd regarding the use of company vehicles at that time, Hancock answered: \u201cThe only people that operated the trucks were foremen, superintendents and myself, unless given permission those trucks were not operated.\u201d When asked whether the trucks were \u201cused to have normal employees\u201d drive to and from work, he replied, \u201cNo, not non-supervisory staff, no.\u201d This evidence was not contradicted by plaintiff.\nDeceased\u2019s brother-in-law, Fox Atkins, testified that \u201c[t]hree people out of 25 were given trucks to drive.\u201d Only the foremen and Mike Hancock were given trucks to go back and forth to work in. When Atkins was hired by Shepherd, he was not told that one of the benefits of employment was transportation to and from work; he was not offered a truck as transportation to and from work.\nTestimony from the widow and daughter of the deceased revealed that the daughter routinely took him to work in the mornings and the wife picked him up in the afternoons. This arrangement was followed after Fox Atkins terminated his employment at Shepherd. Up until then, the deceased traveled to and from work with Fox in Fox\u2019s personal automobile. The widow stated that her husband \u201cdid not ever bring a Shepherd truck home for the sole purpose of transportation to and from work.\u201d There had been an occasion when he drove a Shepherd vehicle home because he was to go to Atlanta to pick up another vehicle. Again she stated that her husband had never brought the pickup home for himself, \u201c[n]ever to get back and forth from work.\u201d We think this evidence clearly shows that Shepherd did not provide transportation for the deceased as an incident to his employment contract. The commission\u2019s finding that decedent was in the course of his employment is not supported by competent evidence.\nBoth parties discuss Battle v. Electic Co., 15 N.C. App. 246, 189 S.E. 2d 788, cert. denied, 281 N.C. 755, 191 S.E. 2d 353 (1972), in their briefs. In Battle, an employee was crushed by his employer\u2019s dump truck while warming it up in the morning preparatory to going to his job site. We agree with defendants\u2019 contention that Battle should not be supportive of plaintiff\u2019s position in this case primarily because the employer in Battle regularly furnished the employee a truck for transportation to and from the work sites. This factor sufficiently distinguishes the two cases.\nDefendants also argue there is no evidence to support the finding of fact that the deceased had permission to drive the company truck home the day of the accident. It is unnecessary that we resolve this question on appeal. Even if there were competent evidence in the record to support this finding, the permission given the deceased on this single, isolated occasion would not make the operation of the pickup truck an incident of his contract of employment. Jackson v. Bobbitt, supra; Lassiter v. Telephone Co., supra.\nDefendants\u2019 remaining assignments of error are directed toward the issue of deceased\u2019s state of intoxication at the time of the accident. Because we hold that the commission erred in finding that the employee was in the course of his employment at the time of his death, it is also unnecessary that we discuss and resolve this controversy.\nThe order of the commission ruling in favor of plaintiff is reversed.\nReversed.\nJudges VAUGHN and WEBB concur.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Faw, Folger, Sharpe and White, by Fredrick G. Johnson, for plaintiff appellee.", "Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, William C. Raper, and Frederick J. Murrell, for defendant appellants." ], "corrections": "", "head_matter": "ALMA ATKINS ROBERTSON, Widow of Thomas Roosevelt Robertson, Deceased v. SHEPHERD CONSTRUCTION COMPANY and CONTINENTAL CASUALTY INSURANCE COMPANY\nNo. 7910IC250\n(Filed 18 December 1979)\nMaster and Servant \u00a7 62\u2014 workmen\u2019s compensation \u2014 accident while driving employer\u2019s truck home from work\nThe death of an employee in an accident while driving his employer\u2019s pickup truck home from work did not arise out of and in the course of his employment where all the evidence showed that the employer did not provide transportation for the deceased employee as an incident of his contract of employment.\nAppeal by defendants from order of North Carolina Industrial Commission entered 14 November 1978. Heard in the Court of Appeals 13 November 1979.\nOn 16 July 1976 Thomas Roosevelt Robertson died as a result of injuries sustained in an automobile accident. Robertson was employed in a non-supervisory position as a fuel truck driver for Shepherd Construction Company. At the time of the accident Robertson was driving a pickup truck, not a fuel truck, owned by his employer. Robertson intended to use the pickup truck as transporation to work the next day. As Robertson was going to his home at the end of the workday, the truck veered off the road surface and crashed. The accident involved no other vehicle.\nThe deceased\u2019s widow filed a claim for death benefits under the North Carolina Workmen\u2019s Compensation Act, on behalf of herself and the deceased\u2019s minor children. Commissioner Coy M. Vance heard the matter 26 January 1978; on 22 May 1978 he entered an opinion and award, ruling in favor of claimant. The full commission, one commissioner dissenting, affirmed the award. Defendants appeal.\nFaw, Folger, Sharpe and White, by Fredrick G. Johnson, for plaintiff appellee.\nWomble, Carlyle, Sandridge & Rice, by Allan R. Gitter, William C. Raper, and Frederick J. Murrell, for defendant appellants." }, "file_name": "0335-01", "first_page_order": 363, "last_page_order": 367 }