62 N.C. App. 121 | N.C. Ct. App. | 1983
Defendants’ first assignment of error is set out in the record as follows: “That the Commission erred in failing to remand the case to the Hearing Commissioner with instructions to change the Findings of Fact with respect to the brakes on the plaintiffs tractor and defendant’s trailer.” In their brief, defendants argue the Industrial Commission erred in “failing to remand the case . . . for reconsideration of testimony.” The defendants did file a motion before the full commission for rehearing but this motion was denied. The defendants failed to except to the denial of this motion; therefore, this assignment of error presents no question for review.
Next, defendants contend the Commission erred in finding and concluding that plaintiffs injuries arose out of and in the course of his employment with the defendant, G. G. Parsons Trucking Co. In our opinion, this case is controlled by our decision in Thompson v. Transport Co., 32 N.C. App. 693, 236 S.E. 2d 312 (1977) in which we held that an operator-lessor of a tractor-trailer is an employee of the lessee within the meaning of the Worker’s Compensation Act. In Thompson we said:
‘Preliminary preparations by an employee, reasonably essential to the proper performance of some required task or service, is generally regarded as being within the scope of employment and any injury suffered while in the act of preparing to do a job is compensable.’ In the last cited case the New York court held compensable an injury suffered by an employee, who had leased his truck-tractor to the defendant employer, while performing repairs or maintenance work on the vehicle at his home in preparation for operating it in his employment as scheduled for later the same day.
In the present case, the plaintiff had not completed the trip from Ohio to Thomasville, North Carolina because of the failing brakes on both the tractor and trailer. It was reasonably necessary for the plaintiff to interrupt his trip at Wilkesboro to have repairs made to the brakes on the trailer and tractor. The accidental injuries sustained by the plaintiff while he was traveling from Wilkesboro to Hickory, for the purpose of having repairs made to the brakes on the tractor to enable him to continue the trip to Thomasville, arose out of and in the course of his employment. See Hoffman v. Truck Lines, Inc., 306 N.C. 502, 293 S.E. 2d 807 (1982), where the Supreme Court in affirming an award of the Industrial Commission to the plaintiff in a similar case expressly approved the reasoning of this court in Thompson. The opinion and award of the Industrial Commission in the present case is
Affirmed.