Opinion
No. 8110IC502
Filed 4 May 1982
Master and Servant 55.6, 62 — workers' compensation — journey to and from work — special errand — completion upon return to own property Plaintiff mortician's trip to and from his employer's funeral home when he went there at night to embalm a body constituted a special errand for his employer and therefore was in the course of his employment; however, plaintiff's special errand ended at the time he left the public street and was again physically on his own property, and injuries received by plaintiff when his car rolled down an incline and struck him as he walked toward the back door of his residence did not occur in the course of his employment, notwithstanding the funeral home did not have shower facilities for plaintiff's use and he was compelled to change clothes and wash the embalming chemical odor from his body at home.
APPEAL by plaintiff from opinion and award of the North Carolina Industrial Commission filed 22 January 1981. Heard in the Court of Appeals 11 January 1982.
Williams, Willeford, Boger, Grady and Davis, by Brice J. Willeford, Jr., for plaintiff appellant.
Hedrick, Feerick, Eatman, Gardner and Kincheloe, by Hatcher Kincheloe, for defendant appellees.
Judge MARTIN (Harry C.) dissenting.
Plaintiff, on 30 July 1978, was employed by defendant, Lady's Funeral Home, as a mortician. His duties included embalming, directing funerals, meeting families, and purchasing equipment and materials. Normal operating hours of the funeral home were from 8:20 a.m. to 5:00 p.m. Plaintiff was one of two qualified embalmers, and worked in a shift arrangement with his fellow worker by which each man was in charge of alternate 24-hour shifts. In addition to his regular duties, plaintiff was to be on call during his shift from the time when a night man, who stayed at the funeral home overnight, came on duty, until 8:00 a.m. Plaintiff was to be available in case of an emergency or death. He was required to stay at his home within hearing and reach of the telephone. After completing his emergency duties, plaintiff always returned directly home, changed clothes and showered to remove the embalming chemical odor from his body. He then awaited other calls. The funeral home did not have sleeping or shower facilities for plaintiff's use.
Plaintiff was on call the night of 29 July and the morning of 30 July 1978. Having been advised of an emergency situation, plaintiff went to the funeral home where he embalmed a body. He returned home at approximately 2:30 a.m. in his own vehicle. He parked his car in his backyard on an incline above and facing the rear entrance of his residence. As he walked toward the back door, the car rolled down the incline and struck him, knocking him through the storm door of the house. Both of his legs were broken and one ankle was crushed.
Deputy Commissioner Lawrence B. Shupin, Jr. entered an opinion and award containing findings of fact and the conclusion that although plaintiff suffered an injury by accident, the accident did not arise out of and in the course of his employment Plaintiff's claim was denied. The Full Commission, with one dissent, affirmed the award. Plaintiff gave notice of appeal.
The sole question presented for review is whether the injury by accident sustained by plaintiff arose out of and in the course of employment. It is undisputed that plaintiff had been called from his house on the night he was injured to embalm a body. The Commission found that plaintiff's injury occurred after he left the funeral home to return to his residence. The general rule is that injuries received by an employee while travelling to or from the work place are usually not covered by this State's Workmen's Compensation Act. Strickland v. King and Sellers v. King, 293 N.C. 731, 239 S.E.2d 243 (1977); Humphrey v. Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959). All parties accede, however, to the deputy commissioner's conclusion, supported by the facts, that the journey to and from the funeral home rose to the level of a special errand. Therefore, "[t]he `come and go' rule, as laid down in Hunt v. State, 201 N.C. 707, is not applicable under the facts in this case. (Citations omitted.)" Massey v. Board of Education, 204 N.C. 193, 196, 167 S.E. 695, 697 (1933). Plaintiff's travel was therefore, properly considered to have been incident to and in the course of his employment. The denial of compensation turned on the subtle determination that plaintiff's journey from his place of employment to his home ended when "he actually left the public street or highway located adjacent to his residence and was again physically present on his property." Plaintiff was at his doorstep when injured by the runaway automobile, hence the deputy commissioner's determination and denial of compensation.
The effect of the special errand rule is to confer "portal to portal" coverage on the employee. 1 Larson, Workmen's Compensation Law 16.10 (1978). The deputy commissioner adopted the reasoning of Charak v. Leddy, 23 A.D. 2d 437, 261 N.Y. Supp.2d 486 (1965), in which it was determined that a claimant who fell and was injured on the steps in the lobby of her apartment building as she left her apartment on a special errand for her employer had not entered the course of employment. The Court said:
A fall in her apartment would not have given rise to any claim. If, however, in the performance of a special errand, she had fallen in the street, barely beyond the outer door of the building, the accident would have been compensable, . . .
. . . [T]he locked inner lobby seems more nearly an adjunct of claimant's home and within its precincts than a public place or an adjunct of the street.
Id. at ___, 261 N.Y. Supp.2d 487-88. Plaintiff had left the street and was on his own property when injured.
Plaintiff argues that the special errand upon which he had been dispatched did not abruptly terminate upon his return because he was compelled to change clothes and wash the embalming chemical odor from his body at home. We note the deputy commissioner's finding that "the funeral home did not have sleeping facilities available in order for the claimant to remain there at the balance of the evening following an emergency call nor did it have shower facilities for the claimant's use. . . ." Plaintiff's argument does not persuade us that the conclusion of the deputy commissioner, as upheld by the Full Commission, that claimant's accident did not arise out of and in the course of his employment, was incorrect.
For an injury to be compensable under our Workmen's Compensation Act, the claimant must prove: (1) that the injury was caused by an accident, (2) that the injury arose out of the employment, and (3) that the injury was sustained in the course of employment, G.S. 97-2 (6). Whether the claimant sustained an injury by accident is not at issue; indeed, the circumstances plainly show that an "accident", as that word is variously defined in Gabriel v. Newton, 227 N.C. 314, 42 S.E.2d 96 (1947), occurred. Whether an injury arises out of the employment refers to the origin or cause of the accident. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). It is generally said that an injury arises out of the employment "when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment." Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643, 645 (1964). It is unnecessary, however, to make a determination as to whether any reasonable relationship to the employment exists here, because we hold that the accident did not occur in the course of plaintiff's employment. "[T]he phrases 'arising out of' and `in the course of' are not synonymous but involve two ideas and impose a double condition, both of which must be satisfied in order to bring a case within the Act. (Citations omitted.)" Sweatt v. Board of Education, 237 N.C. 653, 657, 75 S.E.2d 738, 742 (1953).
Whether an injury occurs in the course of the employment depends upon the time, place and circumstances of the accident. Bartlett v. Duke University, 284 N.C. 230, 200 S.E.2d 193 (1973). Plaintiff's travel from his home to his place of employment would normally be covered under the going and coming rule; yet, because of the unusual hour and urgency of his mission, the special errand rule compels us to regard the travel as an integral part of the service performed. See Massey v. Board of Education, supra. The journey ended when plaintiff returned to his property, however, and the deputy commissioner, with proper regard for the "portal to portal" nature of the special errand rule, accurately found plaintiff to be outside the scope of his employment when misfortune befell him. Charak v. Leddy, supra. As defendant points out in his brief, the time of the accident and the circumstances surrounding it would tend to put the accident within the course of employment by virtue of the special nature of the trip to the funeral home. Plaintiff was not, however, injured at a place of employment, even as that aspect of "course of employment" is viewed under the special errand rule. Our search of the authority in this and other jurisdictions convinces us that the special errand exception to the "coming and going" rule is no more than that — an exception to the general rule that accidents occurring while the employee is in transit to and from work is not compensable. Plaintiff crossed the threshold of his own domain when he left the roadway and entered the driveway behind his house. The special errand doctrine does not transform all employees covered by the Workmen's Compensation Act into absolute insurers of the safety of employees called away on some special mission.
Abundant authority has been promulgated under the personal comfort doctrine to the effect that the course of employment embraces activities such as changing clothes, washing, bathing, and caring for one's appearance generally. Yet injury on the way to or while engaged in such activity has only been compensated when the distress suffered occurred on the employer's premises. Plaintiff argues, however, not that a shower and change of clothes was for his personal comfort and wellbeing, but that its purpose was to comply with one of the conditions of his employment, i.e., that he be presentable to an aggrieved family when needed. We hold that plaintiff's appearance in this case was not so intimately related to his employment as to be a part of it. Were we to hold otherwise, any employee in covered employment whose occupation requires that he deal with the public could claim compensation if he suffered an injury at home while bathing or grooming for work.
We deem that there is competent evidence to support the facts found, and that the findings fully and fairly support the conclusion of law and denial of compensation. The deputy commissioner's award is, therefore,
Affirmed.
Judge VAUGHN concurs.
Judge MARTIN (Harry C.) dissents.