#### HATTIE LASSITER v. CAROLINA TELEPHONE & TELEGRAPH COMPANY.

(Filed 8 March, 1939.)

1. Master and Servant § 40f — Injury sustained while employee is being gratuitously transported to work is not in course of employment.

Evidence tending to show that an employee was fatally injured while being transported from his home to the place of his work, and that such transportation was gratuitous and not furnished as a matter of right under the contract of employment, sustains the finding of the Industrial Commission that the injury did not arise in the course of the employment.

*2282. Master and Servant § 55d—

The findings of fact by the Industrial Commission are conclusive and not subject to review on appeal, either in the Superior Court or Supreme Court, if they are supported by competent evidence, even though the Court might have reached a different conclusion if it had been the fact-finding body.

Appeal by plaintiff from Bone, J., at November Term, 1938, of Edgecombe.

Affirmed.

This is an action brought by plaintiff, Hattie Lassiter (widow), against defendant for the death of her husband, Alexander Lassiter, under the N. C. Workmen’s Compensation Act.

The Hearing Commissioner “finds as a fact that from the time the truck in which the deceased was riding left the point of operations in Eastern North Carolina, until they arrived at the home of the deceased in Rocky Mount and from the time the deceased left his home at Rocky Mount until he got back to the scene of the operations, if he reached that place before the time of the accident, he was not performing any duty or labor for the employer, and that the transportation from the scene of the operations to Rocky Mount and from Rocky Mount back to the scene of the operations of the deceased, was pure accomodation for the deceased. AWARD: Wherefore the Commissioner finds as a fact that the deceased’s injuries resulting in his death did not arise out of and in the course of his employment. It is directed that an award shall issue denying compensation and directing that claimant’s claim be dismissed. Each party will pay its own costs.”

Upon appeal, the judgment of the Hearing Commissioner was approved, as follows: “The Full Commission is of the opinion that the plaintiff’s deceased’s right to transportation was merely a gratuitous one, a mere accomodation. Hunt v. State, 201 N. C., 707. The Full Commission affirms the findings of fact, the conclusions of law, and the award of the hearing Commissioner. The claim is dismissed. Each side will pay its own costs.”

Upon appeal from the full Commission to the Superior Court, the following judgment was rendered: “Upon the hearing and after argument of counsel for both parties, the court is of the opinion that the findings of fact, as stated by the Industrial Commission, are supported by competent evidence, and that the conclusions of law therefrom, as found by the Industrial Commission, are in all respects correct. Therefore, it is adjudged, ordered and decreed that the award of the Industrial Commission be and the same hereby in all respects is approved and confirmed, that this action be dismissed and that plaintiff be taxed with the costs incurred in this court. Walter J. Bone, Judge.”

*229From tbe above judgment tbe plaintiff excepted, assigned error and appealed to tbe Supreme Court.

O. B. Moss, Harold B. Cooley, and Ban B. Bryan for plaintiff.

Gilliam & Bond for defendant.

ClaRksoN, J.

Tbe question involved: Is tbe finding of tbe Industrial Commission to tbe effect that tbe fatal injuries received by tbe employee, tbe husband of plaintiff, did not “arise out of and in tbe course of bis employment” supported by competent evidence? We think so.

In Hunt v. State, 201 N. C., 707 (710-11), it is written: “So, 'while there is a difference between tbe beginning of employment and tbe beginning of work, or going to work on the employer’s time, an accident to a workman on bis way to work is not ordinarily in tbe course of employment.’ I Ilonnold on Workmen’s Compensation, sec. 107. True, tbe moment when be begins bis work is not necessarily tbe moment when be gets into tbe employment, because a reasonable margin must be allowed him to get to tbe place of work if be is on tbe premises of tbe employer or on some access to tbe premises which tbe employer has provided. Davidson v. M’Robb, supra (Appeal Cases, 1918, 304). ‘The workman is not regarded to be outside tbe scope of bis employment unless actually at work or in the receipt of wages, nor is be regarded as within it because what be is doing is something which has relation only to bis work. Tbe test finally adopted lies between tbe two. Tbe place at which tbe injury is sustained becomes the determining factor among those things which be does solely because be is engaged in a particular employment; only those are regarded as in tbe course of tbe employment which are done within tbe master’s premises or upon some means ,of conveyance to or from bis place of work which is provided by the master for tbe sole use of bis servants and which tbe servant is required or entitled to use by virtue of bis contract of employment.’ 25 Harvard Law Review, 403. Tbis is also Honnold’s conclusion. He says: 'The rule has been established in accordance with sound reason that tbe employer’s liability in such cases depends upon whether tbe conveyance has been provided by him, after tbe real beginning of tbe employment, in compliance with one of tbe implied or express terms of tbe contract of employment, for tbe mere use of tbe employees,' and is one which tbe employees are required, or as a matter of right are permitted, to use by virtue of that contract. Pursuant to tbis rule, tbe employee is in tbe course of employment if be has a right to tbe transportation, but not if it is gratuitous, or a mere accomodation. A workman injured while riding to or from bis work in tbe conveyance of a third person is not ordinarily entitled to compensation.’ Honnold, sec. 110. Tbis is tbe *230principle underlying the decision in Dependents of Phifer v. Dairy, 200 N. C., 65, to the effect that if an employer furnishes transportation for his employee as an incident of the employment, or as a part of the contract, an injury is compensable if suffered by the employee while going to or returning from the place of work in the vehicle furnished by the employer and under his control.” Hildebrand v. Furniture Co., 212 N. C., 100; Davis v. Mecklenburg County, 214 N. C., 469.

It is established in this jurisdiction that the findings of fact made by the Industrial Commission, if supported by competent evidence, are conclusive on appeal and not subject to review by the Superior Court or this Court, although this Court may have reached a different conclusion if it had been the fact finding body.

From the findings of fact by the Industrial Commission on competent evidence, the judgment of the court below must be

Affirmed.