Smith v. City of Gastonia

5 S.E.2d 540, 216 N.C. 517, 1939 N.C. LEXIS 31

• Court: Supreme Court of North Carolina
• Decided: November 22, 1939
• Status: Published

Opinion

Seawell, J.

The sole question in controversy here is as to whether the decedent was at the time of his injury and death in the exercise of any of the duties of his employment or in the enjoyment of its protection.

Nothing else appearing, an employer is not liable for accidents occurring to an employee while going to or returning from the employer’s premises in order to begin his work or after its conclusion, and an accident so occurring is not held to arise out of and in the course of the employment. Bray v. Weatherly & Co., 203 N. C., 160, 161, 165 S. E., 332, 94 A. L. R., 589.

But the authorities seem to be uniform to the effect that where the employer furnishes the means of transportation to and from the place where the service is performed as an incident to the contract of employment an injury suffered by the employee while going to and from work is compensable. Phifer v. Dairy, 200 N. C., 65, 156 S. E., 147; Jackson v. Creamery, 202 N. C., 196, 162 S. E., 359; Bellamy v. Mfg. Co., 200 N. C., 676, 158 S. E., 246; Parrish v. Armour & Co., 200 N. C., 654, 158 S. E., 188; Massey v. Board of Education, 204 N. C., 193, 167 S. E., 695, and cases cited.

It is contended here that tbe furnishing of the motorcycle by the city of Gastonia was not incident to the contract of employment and, therefore, did not come under the rule.

The testimony is that at the time he was employed or sworn in the motorcycle was furnished him, and the understanding was that he could use it in his employment as a motorcycle policeman and that he could leave it at headquarters or carry it home, as he saw fit; but that at any rate he was solely responsible for it at all times.

If this should need strengthening, and we do not think so, as throwing some light on the intention of the parties, we may consider the course of their dealings as to a certain extent indicating the interpretation they themselves put upon it. Cole v. Fibre Co., 200 N. C., 484, 157 S. E., 857; Hood v. Simpson, 206 N. C., 748, 175 S. E., 193; Bank v. Courtway, 200 N. C., 522, 157 S. E., 864. Daily, and with the knowledge of the authorities, the decedent rode the motorcycle from his home to headquarters to begin his more particular duties, and when the hours were over he rode it back again to his home. The fact also that he was a motorcycle policeman and so equipped because it was necessary for him immediately to respond to emergencies, which he could do only by the use of the motorcycle given into his complete custody and control, and that he was always on call, strongly supports the view taken of the case both by the Industrial Commission and the court below, and their conclusion that he suffered his injury and death from an accident arising out of and in the course of his employment. We reach the same conclusion.

The judgment is

Affirmed.