NORTH CAROLINA COURT OF APPEALS
Filed: 7 November 2006
SUSAN BARDIN FULLER, in Her
Individual Capacity and in Her
Capacity as Guardian Ad Litem for
ANNIE CAMP FULLER, PAUL SLADE
FULLER, and LANDON ALYCE FULLER,
the Minor Children of PAUL
FRANKLIN FULLER, JR., Deceased
v. North Carolina Industrial
I.C. No. 286748
CLEAR CHANNEL COMMUNICATIONS,
Employer, LUMBERMEN'S INSURANCE
(GALLAGHER BASSETT SERVICES, Third
Party Administrator), Carrier,
Appeal by defendants from an Opinion and Award filed 3
November 2005 by the Full Commission. Heard in the Court of
Appeals 20 September 2006.
Elliot Pishko Morgan, P.A., by J. Griffin Morgan, and Morrow
Alexander & Porter, P.L.L.C., by John F. Morrow, for
McAngus, Goudelock & Courie, P.L.L.C., by John T. Jeffries and
Sally G. Boswell, for defendant-appellants.
Clear Channel Communications and Lumbermen's Insurance
(defendants) appeal from an Opinion and Award from the Full
Commission filed 3 November 2005 granting compensation to Susan
Bardin Fuller, in her individual capacity and in her capacity as
Guardian ad Litem for the minor children of the decedent, PaulFranklin Fuller, Jr. (plaintiffs). For the reasons stated herein,
we affirm the Full Commission's Opinion and Award.
At the time of his injury, Paul Fuller (the decedent) was
employed by Clear Channel Communications as Program Director for
radio station WTQR, and as host of that station's morning show,
Good Morning, Good Morning, Good Morning. The program aired live
from 5:30 a.m. until 10:00 a.m., Monday through Friday. The
decedent's co-host on the show was by Mr. Toby Young.
Prior to his death, the decedent planned a trip with his wife
and friends to Myrtle Beach, South Carolina to attend the Bike Week
festivities there. The trip was originally planned in celebration
of the wedding anniversary of the decedent and his wife, Mrs. Susan
Fuller. As the trip approached, the decedent repeatedly discussed
his plans on the air with Mr. Young, often in conjunction with paid
advertisements for Crossroads Harley-Davidson, a motorcycle
dealership that regularly advertised on Good Morning, Good
Morning, Good Morning, and which was a sponsor of the upcoming
Bike Week. In the course of these discussions, the decedent
eventually made an on-the-air promise to listeners that he would do
a live telephone call-in to the show from Myrtle Beach during Bike
Week. Since the show did not air live on weekends, the decedent
changed his plans, electing to leave for Myrtle Beach on Thursday,
16 May 2002 rather than Friday, 17 May 2002 as originally planned,
so that he could call in during the Friday morning show. This
required that the decedent be absent from WTQR's premises during aratings period, which was extremely rare for him due to the
importance of ratings periods to the station.
The decedent was fatally injured while traveling by motorcycle
from Greensboro to Myrtle Beach on Thursday, 16 May 2002.
Plaintiffs sought compensation and benefits and were denied by
defendants. Plaintiffs then filed a Form 33 Request that Claim be
Assigned for Hearing.
The matter was originally heard on 13
October 2003 before Deputy Commissioner George T. Glenn, II of the
North Carolina Industrial Commission. On 18 August 2004, Deputy
Commissioner Glenn issued an Opinion and Award, finding that the
decedent's fatal accident occurred within the course of his
employment, and awarding compensation and benefits to plaintiffs
pursuant to N.C. Gen. Stat. §§ 97-25, 97-38 and 97-39.
Defendants gave notice of appeal to the Full Commission in a
letter dated 27 August 2004, and the matter came before that body
on 30 August 2005. On 3 November 2005, the Full Commission filed
its Opinion and Award, upholding that of Deputy Commissioner Glenn.
Defendants then gave notice of appeal to this Court in a letter
dated 2 December 2005.
Defendants present three issues on appeal: (I) whether the
Industrial Commission erred in considering hearsay testimony as to
statements made by the decedent; (II) whether the Commission erred
in finding that the decedent was acting for the appreciable benefit
of his employer in traveling to Myrtle Beach Bike Week; and (III)
whether the Commission erred in concluding that the decedent wasacting within the course of his employment when he suffered the
Standard of Review
Appellate review of an award from the Industrial Commission is
limited to two issues: (1) whether the Commission's findings of
fact are supported by competent evidence, and (2) whether the
conclusions of law are justified by the findings. Clark v. Wal-
, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). In an appeal
such as the one at bar, this Court 'does not have the right to
weigh the evidence and decide the issue on the basis of its weight.
The [C]ourt's duty goes no further than to determine whether the
record contains any evidence tending to support the finding[s].'
Adams v. AVX Corp.
, 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)
(quoting Anderson v. Lincoln Constr. Co.
, 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)). The Industrial Commission's conclusions
of law are reviewed de novo
. McRae v. Toastmaster, Inc.
, 358 N.C.
488, 496, 597 S.E.2d 695, 701 (2004).
Defendants first argue that the Commission erred in
considering hearsay testimony as to statements made by the decedent
prior to the accident. Defendants contend that hearsay testimony
regarding statements made by the decedent on his radio program was
improperly admitted by the Full Commission. Hearsay is defined as
a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). Hearsay is not admissible except as provided by statute or by
these rules. N.C. Gen. Stat. § 8C-1, Rule 802 (2005). One form
of hearsay not excluded by this rule is [a] statement of the
declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health). N.C. Gen. Stat. § 8C-1, Rule
803(3) (2005). This state of mind hearsay exception includes
statements of then-existing intent to engage in future acts.
State v. Nicholson
, 355 N.C. 1, 35, 558 S.E.2d 109, 133 (2002).
Defendants argue the admission under Rule 803(3) of testimony
regarding statements by the decedent of his intent to do a live
call-in to Good Morning, Good Morning, Good Morning from Myrtle
Beach Bike Week was improper because the testimony did not
establish the decedent would have actually completed a call-in, but
rather shows merely that it was the decedent's intent to do so at
the time he made the statements. This argument is without merit.
For hearsay evidence pertaining to a declarant's then-existing
intent to engage in future acts to be admissible, that evidence
need not demonstrate that such intent was certain to be brought to
It is sufficient to satisfy the state of mind hearsay
exception that the statements at issue here, the decedent's on-the-
air promises to listeners that he would do a live call-in from Bike
Week, were statements of the decedent's intent to complete the
call-in in the future. See
N.C. Gen. Stat. § 8C-1, Rule
, 355 N.C. at 35, 558 S.E.2d at 133.
Defendants then argue that it was improper for the FullCommission to consider this state of mind testimony in order to
infer that the decedent would have actually completed a live call-
in to the morning show had he made it to Myrtle Beach. This
argument is also without merit. If the Full Commission were
prohibited from drawing reasonable inferences from the evidence
before it, then the admission of the evidence would be pointless.
It was for the Commission to decide what inferences to draw, and it
is for this Court to determine on appeal whether the Commission's
findings are supported by competent evidence. Wal-Mart
at 43, 619
S.E.2d at 492.
Since the hearsay evidence of the decedent's intent to do a
call-in to his radio program supports an inference that he would
have completed the call-in had he made it to Bike Week, and because
that evidence is competent in that it was properly admitted under
the state of mind exception to the hearsay rule, we hold that the
Full Commission did not err in its admission and use of the
challenged hearsay testimony. This assignment of error is
Defendants next contend that the competent evidence does not
support the Full Commission's finding that the decedent was acting
for the appreciable benefit of his employer in traveling to Myrtle
Beach Bike Week. In order for plaintiffs to receive compensation
for the decedent's death under the Workers' Compensation Act, the
accident must have arisen out of and in the course of the
decedent's employment. See
N.C. Gen. Stat. § 97-2(6) (2005). Itis a well settled rule that the question of whether an injured
worker's injury arose out of and in the course of employment
'basically turns upon whether or not the employee was acting for
the benefit of his employer to any appreciable extent when the
accident occurred.' McBride v. Peony Corp.
, 84 N.C. App. 221,
226, 352 S.E.2d 236, 240 (1987) (quoting Pollock v. Reeves Bros.,
, 313 N.C. 287, 292, 328 S.E.2d 282, 285 (1985)) (internal
Contrary to defendants' contention, there is competent
evidence to support a finding that the decedent was acting for the
benefit of his employer when the fatal accident took place. Mr.
Young testified that the decedent's plan to do a call-in to the
radio show from Myrtle Beach Bike Week was aimed at maintaining
strong ties with advertiser Crossroads Harley-Davidson, and at
increasing the station's listenership by appealing to motorcycle
enthusiasts. Essentially, Young testified that the decedent's
intent was to confer appreciable benefits upon his employer.
Since this Court's role in this appeal 'goes no further than
to determine whether the record contains any evidence tending to
support the finding,' Adams
, 349 N.C. at 681, 509 S.E.2d at 414
(quoting Anderson v. Lincoln Constr. Co.
, 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)), and since Mr. Young's testimony supports
the Full Commission's finding that the decedent was acting for the
benefit of his employer in making the trip to Myrtle Beach,
defendants' assignments of error with regard to this issue are
Defendants' final contention is that the Full Commission erred
in concluding that the decedent was acting within the course of his
employment when he suffered the fatal injuries. As noted above, in
order for plaintiffs to receive compensation for the decedent's
death under the Workers' Compensation Act, the accident must have
arisen out of and in the course of the decedent's employment. See
N.C. Gen. Stat. § 97-2(6) (2005). 'Ordinarily, an injury suffered
by an employee while going to or coming from work is not an injury
arising out of and in the course of employment.' Osmond v.
Carolina Concrete Specialties
, 151 N.C. App. 541, 544, 568 S.E.2d
204, 207 (2002) (quoting Felton v. Hospital Guild of Thomasville,
, 57 N.C. App. 33, 34, 291 S.E.2d 158, 159 (1982)). There are
exceptions to this general rule, however.
One such exception is that employees whose work requires
travel away from the employer's premises are within the course of
their employment continuously
during such travel, except when there
is a distinct departure for a personal errand. Cauble v.
, 124 N.C. App. 526, 528, 477 S.E.2d 678, 679
(1996); see also Clark v. Burton Lines
, 272 N.C. 433, 438,
158 S.E.2d 569, 572 (1968). The Full Commission concluded that in
the instance of his trip to Myrtle Beach, the decedent's work
entailed travel away from his employer's premises, and that the
decedent was not engaged in any distinct departure for a personal
errand when the fatal accident occurred. Thus, according to the
Commission, the decedent was within the course of his employmentwhile traveling to Bike Week.
These conclusions are justified in light of the Commission's
findings of fact. The Commission found that the decedent's planned
call-in from Bike Week necessitated travel to Myrtle Beach on
Thursday, 16 May 2002, since the decedent would have to be on
location on the morning of Friday, 17 May 2002 in order to call
while Good Morning, Good Morning, Good Morning was on the air
live. The Commission also found that if the trip to Myrtle Beach
had been solely for personal reasons, the decedent would have left
on Friday after completing that morning's show, rather than leaving
on Thursday as he did. These findings, in turn, are supported by
competent evidence. Both Mrs. Fuller and Mr. Young testified that
in order to do the live call-in from Bike Week, it was necessary
for the decedent to travel to Myrtle Beach on Thursday rather than
on Friday. Both also testified that the decedent would never have
taken a personal vacation day during a ratings period. In fact,
Mrs. Fuller testified that the decedent had made personal visits to
Bike Week in past years, but that he had always left on Friday so
as not to miss work.
Another exception to the general rule regarding travel to and
from the workplace is the dual purpose rule. Our Supreme Court has
set out the test for whether a trip with both personal and business
purposes falls within the dual purpose exception:
If the work of the employee creates the
necessity for travel, [he] is in the course of
his employment, though he is serving at the
same time some purpose of his own. . . . If
however, the work has had no part in creating
the necessity for travel, if the journey wouldhave gone forward though the business errand
had been dropped, and would have been canceled
upon failure of the private purpose, though
the business errand was undone, the travel was
then personal, and personal the risk.
Murray v. Associated Insurers
, 341 N.C. 712, 714, 462 S.E.2d 490,
491 (1995) (alterations in original) (quotation omitted). The Full
Commission concluded that the decedent had dual purposes in
traveling to Myrtle Beach Bike Week. First, the trip was intended
to benefit the decedent's employer. Second, the decedent intended
to enjoy Bike Week with his friends, and to celebrate his
anniversary with his wife. The Commission concluded further that
if the business purpose of the trip had been dropped, then the
personal trip would have been postponed from Thursday, 16 May 2002
until Friday, 17 May 2002. Thus, the Commission concluded that the
decedent was in the course of his employment at the time of the
accident even though he was also traveling to Myrtle Beach to
pursue personal interests.
These conclusions are justified by the Commission's findings
of fact, which in turn are supported by competent evidence. As
noted above, the Commission found that the decedent was acting for
the benefit of his employer when the fatal accident took place, and
this finding is supported by Mr. Young's testimony that the
decedent's intent in going to Myrtle Beach on Thursday rather than
Friday was to confer appreciable benefits upon his employer. Also
noted above is the Commission's finding that if the trip had been
solely for personal reasons, the decedent would have left on Friday
after completing that morning's show. This finding is supported bytestimony that the decedent would never have taken a personal
vacation day during a ratings period, and justifies the conclusion
that the personal trip would have been postponed if the business
purpose of the trip had been dropped.
Thus, since its conclusions of law are justified by the
findings of fact, and since those findings are supported by
competent evidence, the Full Commission did not err in concluding
that the decedent was within the course of his employment when he
suffered the fatal injuries. Accordingly, defendants' assignments
of error with regard to this issue are overruled.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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