{ "id": 4748868, "name": "BETTY B. FORTNER, Employee, Plaintiff v. J. K. HOLDING COMPANY, Employer, and AMERICAN INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Fortner v. J. K. Holding Co.", "decision_date": "1987-06-02", "docket_number": "No. 685A86", "first_page": "640", "last_page": "645", "citations": [ { "type": "official", "cite": "319 N.C. 640" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "349 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": -1 }, { "cite": "83 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358093 ], "year": 1986, "opinion_index": -1, "case_paths": [ "/nc-app/83/0101-01" ] }, { "cite": "72 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "parenthetical": "plaintiffs act in washing his personal car while on the job, although with his employer's knowledge, was for his personal benefit and did not arise out of and in the course of his employment" } ], "opinion_index": 0 }, { "cite": "236 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624774 ], "year": 1952, "pin_cites": [ { "parenthetical": "plaintiffs act in washing his personal car while on the job, although with his employer's knowledge, was for his personal benefit and did not arise out of and in the course of his employment" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0280-01" ] }, { "cite": "132 S.E. 2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "880", "parenthetical": "although cooking and chauffering for his supervisor on a hunting trip was one of deceased's duties, his act in going, hunting with the supervisor's two sons was done exclusively for his own benefit" } ], "opinion_index": 0 }, { "cite": "260 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574978 ], "year": 1963, "pin_cites": [ { "page": "412", "parenthetical": "although cooking and chauffering for his supervisor on a hunting trip was one of deceased's duties, his act in going, hunting with the supervisor's two sons was done exclusively for his own benefit" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0410-01" ] }, { "cite": "85 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "241 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612018 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0448-01" ] }, { "cite": "295 S.E. 2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "306 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573682 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0728-01" ] }, { "cite": "131 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562493 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0724-01" ] }, { "cite": "293 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568137 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0248-01" ] }, { "cite": "97 S.E. 2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625636 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0214-01" ] }, { "cite": "266 S.E. 2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "300 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561147 ], "year": 1980, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0329-01" ] }, { "cite": "293 S.E. 2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "809-10" } ], "opinion_index": 0 }, { "cite": "306 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571346 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0502-01" ] }, { "cite": "328 S.E. 2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "313 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723438 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0287-01" ] } ], "analysis": { "cardinality": 645, "char_count": 12012, "ocr_confidence": 0.815, "pagerank": { "raw": 1.1158474874899388e-07, "percentile": 0.5721953287624105 }, "sha256": "231b77c25b4d45de77b9cc497c5541dc3f0239ce29b2fdacbfc664d882efb62a", "simhash": "1:0f9528ea38f7aa7e", "word_count": 2047 }, "last_updated": "2023-07-14T21:18:01.553874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BETTY B. FORTNER, Employee, Plaintiff v. J. K. HOLDING COMPANY, Employer, and AMERICAN INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "FRYE, Justice.\nThe sole question on appeal before this Court is whether the plaintiffs accident arose out of and in the course of her employment. We hold that it did not, and accordingly affirm the decision of the Court of Appeals.\nBefore turning to a consideration of this issue, however, we must first address one preliminary matter. In plaintiffs new brief filed with this Court, in place of a new argument, her attorney included a statement incorporating by reference into the new brief the argument contained in plaintiffs brief before the Court of Appeals. Defendant moved to dismiss plaintiffs appeal for failure to comply with N.C.R. App. P. 28. Plaintiffs attorney submitted a response explaining that he had relied upon the Commentary to Subdivision (d) of Rule 28, which states that that subdivision allows incorporation of argument by reference. The current N.C.R. App. P. 28(d), however, concerns appendices to briefs and makes no reference to incorporation by reference. The commentary refers to former subsection (d). A note appearing in the 1987 volume of rules published by the Michie Company {Annotated Rules of North Carolina) explains that former N.C.R. App. P. 28(d), permitting such incorporation of argument by reference, was repealed in 1981, and incorporation by reference is no longer permitted. However, in the equivalent 1987 volume published by the West Publishing Company and used by the plaintiff, the note was somewhat garbled (North Carolina Rules of Courtl. Deferring action on defendant\u2019s motion, the Court issued an order allowing plaintiff fifteen days within which to file an amended brief. Plaintiff complied with this order, and defendant has not been prejudiced thereby. Accordingly, defendant\u2019s motion to dismiss plaintiffs appeal is denied. However, we call to the attention of the Bar the fact that incorporation by reference of arguments contained in briefs before the Court of Appeals is not permitted under our present Rules of Appellate Procedure.\nPlaintiff filed a claim for workers\u2019 compensation benefits as the result of an accident that occurred on 31 August 1984. The claim was denied by the deputy commissioner and again by the Full Commission, which adopted the deputy commissioner\u2019s opinion and award as its own. Commissioner Clay dissented. Plaintiff appealed to the Court of Appeals, which affirmed the Commission\u2019s decision, with a dissent by Judge Phillips. Plaintiff appealed to this Court.\nThe facts as found by the Commission show that on 31 August 1984, the date of the accident, plaintiff had been working for defendant employer for about five years. Defendant employer is owned by J. C. Kivett. Plaintiff worked for another company owned by Kivett before working for defendant. Kivett spent most of his time traveling on defendant employer\u2019s business, and plaintiff, who was the sole employee in the office, took care of the office. Her duties were varied and variable. Inter alia, she did necessary office work, picked up mail, went to the bank, purchased supplies, cleaned the office, took care of the hanging plants which decorated the office, and ran errands for Kivett. She was allowed a tank of gas per month as a travel allowance.\nSometime prior to 31 August 1984, Kivett decided to close the office and rent the building effective 1 September 1984. Because he was going to be out of town at the time, he instructed plaintiff to pack the office materials and move them to another location and to dispose of all the hanging plants except one that he wished to keep. These plants were grown from cuttings that Kivett had brought from home. They had been in the office for about five years. Kivett expected plaintiff to give the plants away or else to keep them. He knew that she would not choose to throw them away as the form of disposal.\nOn 31 August 1984, the last day the office was to be open, plaintiff put the plants and their hanger in her car and drove home. She intended to return to the office to finish packing and to vacuum. When she arrived at her home, she unloaded the plants and their hanger from her car and set them on the porch. She climbed onto a chair and hung the hanger on a nail that she had previously driven to hold the hanger. She stepped down, decided that the hanger was not level, and stepped back up onto the chair to straighten it. She fell and injured her hip. Neither party takes exception to the findings containing these basic facts; they are accordingly binding upon this Court on appeal. Pollock v. Reeves Bros., Inc., 313 N.C. 287, 292, 328 S.E. 2d 282, 286 (1985).\nPlaintiff excepts only to the Commission\u2019s final finding, that the accident did not arise out of and in the course of her employment, and the Commission\u2019s conclusion of law to the same effect. As this Court has stated before on many occasions, \u201c \u2018[w]hether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner\u2019s findings in this regard, we are bound by those findings.\u2019 \u201d Id. quoting Hoffman v. Truck Lines, Inc., 306 N.C. 502, 506, 293 S.E. 2d 807, 809-10 (1982), quoting Barham v. Food World, 300 N.C. 329, 331, 266 S.E. 2d 676, 678 (1980). If the detailed findings of fact compel a conclusion different from that reached by the Commission, it is the duty of the appellate courts to reverse the Commission. Alford v. Chevrolet Co., 246 N.C. 214, 97 S.E. 2d 869 (1957). Far from compelling a conclusion different from that reached by the Commission, the detailed facts found by the Commission in the instant case support the finding that plaintiff s accident did not arise out of and in the course of her employment.\nIn order for an employee to be entitled to workers\u2019 compensation benefits for accidental injury, the employee must prove that the accident arose out of and in the course of the employment. N.C.G.S. \u00a7 97-2(6) (1985). The term \u201carising out of\u2019 refers to the origin or cause of the accident, and the term \u201cin the course of\u2019 refers to the time, place, and circumstances of the accident. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E. 2d 196 (1982); Cole v. Guilford County, 259 N.C. 724, 131 S.E. 2d 308 (1963). An accident arises \u201cin the course of\u2019 the employment when\nthe injury occurs during the period of employment at a place where an employee\u2019s duties are calculated to take him, and under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further directly or indirectly, the employer\u2019s business.\nPowers v. Lady\u2019s Funeral Home, 306 N.C. 728, 730, 295 S.E. 2d 473, 475 (1982).\nPlaintiff contends that the facts in her case meet these two requirements. She was specifically instructed to dispose of the plants. The method by which she did so was left up to her. Her employer was aware that she would not merely throw the plants away but would either give them away or keep them herself. The plants had to be disposed of on that particular day and the office cleaned. Plaintiff chose to dispose of the plants by taking them to her home. She contends that the manner in which she carried out her assigned task was not unreasonably dangerous, nor did it violate any rule of her employment. She argues that at the least she is protected under either the \u201cspecial errand\u201d doctrine, see 1 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 16.10 (1985); see also Powers v. Lady\u2019s Funeral Home, 306 N.C. 728, 295 S.E. 2d 473, or by the \u201cdual purpose\u201d doctrine, see Pollock v. Reeves Bros., Inc., 313 N.C. 287, 328 S.E. 2d 282.\nAssuming, arguendo, that plaintiff is correct that her action in taking the plants to her home qualifies as a \u201cspecial errand\u201d or falls under the \u201cdual purpose\u201d doctrine, we hold that her accident is nonetheless not compensable. \u201cBasically, 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 . . . .\u201d Guest v. Iron & Metal Co., 241 N.C. 448, 452, 85 S.E. 2d 596, 600 (1955); see also Pollock v. Reeves Bros., Inc., 313 N.C. 287, 328 S.E. 2d 282; Hoffman v. Truck Lines, Inc., 306 N.C. 502, 293 S.E. 2d 807. When plaintiffs accident occurred, she had already deposited the plants at her home. She was then free to return to the office to finish packing and vacuum up any remaining debris, including plant debris. She chose instead to hang the plants. Even assuming that hanging them was a reasonable extension of the task of disposing of them, her further action in attempting to insure that they would hang straight, and thus appear aesthetically pleasing in their new position in her home, was of no conceivable benefit to her employer. Plaintiff at that point was acting solely for her own benefit. \u201cWhere an employee at the time of his injury is performing acts for his own benefit, and not connected with his employment, the injury does not arise out of his employment.\u201d Lewis v. Tobacco Co., 260 N.C. 410, 412, 132 S.E. 2d 877, 880 (1963) (although cooking and chauffering for his supervisor on a hunting trip was one of deceased\u2019s duties, his act in going, hunting with the supervisor\u2019s two sons was done exclusively for his own benefit); see also Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E. 2d 680 (1952) (plaintiffs act in washing his personal car while on the job, although with his employer\u2019s knowledge, was for his personal benefit and did not arise out of and in the course of his employment); cf. Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596 (plaintiffs act in helping service station attendant who had agreed to give him free air for a tire for employer\u2019s vehicle was beneficial to the employer). Accordingly, the Commission did not err in finding that plaintiffs accident did not arise out of and in the course of her employment.\nFor the reasons stated in this opinion, the decision of the Court of Appeals is affirmed.\nAffirmed.\n. West Publishing Company has corrected this in its 1 March Supplement to the 1987 Volume.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Homesley, Jones, Gaines & Fields, by Edmund L. Gaines and Cliff W. Homesley, for plaintiff-appellant.", "Hedrick, Eatman, Gardner & Kincheloe, by Thomas E. Williams, for defendant-appellees." ], "corrections": "", "head_matter": "BETTY B. FORTNER, Employee, Plaintiff v. J. K. HOLDING COMPANY, Employer, and AMERICAN INSURANCE COMPANY, Carrier, Defendants\nNo. 685A86\n(Filed 2 June 1987)\n1. Appeal and Error \u00a7 45\u2014 Supreme Court briefs \u2014 incorporation of Court of Appeals arguments not allowed\nUnder the present Rules of Appellate Procedure, briefs filed in the Supreme Court may not incorporate by reference arguments contained in briefs before the Court of Appeals.\n2. Master and Servant \u00a7 55.4\u2014 workers\u2019 compensation \u2014disposing of employer\u2019s plants \u2014accident while hanging plants at home \u2014 injury not arising out of and in course of employment\nWhere plaintiff was instructed to pack up office materials and dispose of hanging plants in preparation for permanently closing the employer\u2019s office, plaintiff took the plants and their hanger to her home during working hours, plaintiff climbed onto a chair and placed the hanger on a nail, and plaintiff decided the hanger was not level, climbed back onto the chair to straighten it, and fell and injured her hip, plaintiffs accident did not arise out of and in the course of her employment, even if plaintiffs taking of the plants to her home qualifies as a \u201cspecial errand\u201d or falls under the \u201cdual purpose\u201d doctrine and hanging the plants was a reasonable extension of disposing of them, since plaintiffs further action in attempting to insure that they would hang straight was of no benefit to her employer but was for her sole benefit.\nAPPEAL by plaintiff from the decision of a divided panel of the Court of Appeals, 83 N.C. App. 101, 349 S.E. 2d 296 (1986), affirming an opinion and award of the Industrial Commission denying plaintiffs claim for benefits. Heard in the Supreme Court 14 April 1987.\nHomesley, Jones, Gaines & Fields, by Edmund L. Gaines and Cliff W. Homesley, for plaintiff-appellant.\nHedrick, Eatman, Gardner & Kincheloe, by Thomas E. Williams, for defendant-appellees." }, "file_name": "0640-01", "first_page_order": 672, "last_page_order": 677 }