Hinkle v. City of Lexington , 239 N.C. 105 ( 1953 )

79 S.E.2d 220 (1953) 239 N.C. 105

HINKLE et al.
v.
CITY OF LEXINGTON et al.

No. 678.

Supreme Court of North Carolina.

December 16, 1953.

J. T. Jackson and Charles W. Mauze, Lexington, for plaintiff appellee.

McNeill Smith, Bynum Hunter, Smith, Sapp, Moore & Smith, Greensboro, for defendants appellants.

DEVIN, Chief Justice.

When supported by competent evidence, the findings of fact by the Industrial Commission on a claim properly constituted under the Workmen's Compensation Act are conclusive on appeal, both in the Superior Court and in this Court. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869. The appellants in the case at bar have preserved their exceptions to the order of the Industrial Commission and the judgment of the Superior Court on the ground that the determinative findings of the Commission were not supported by the evidence; but from an examination of the record we conclude that this initial challenge to the decision below cannot be sustained. We think there was competent evidence tending to support the findings and to permit the inferences drawn by the Commission. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97.

The appellants, however, contend that as a matter of law the record is insufficient to support the conclusion that the death of Walter I. Sowers arose out of and in the course of his employment by the city. They advance the argument that if at the time he was killed decedent was on his way to a funeral home, as found by the Commission, it was in connection with his independent business of digging graves.

It is true the decedent was paid by others for digging graves, but this was undoubtedly in connection with his general duties "to care for the cemeteries" under the direction and control of the cemetery committee. The usual test for determining whether the relationship between the parties is that of employer and employee or independent contractor is whether the employer has the right to control the workman with respect to the manner and method of doing the work as distinguished from the mere right to require certain results, and it is not material as determinative of the relationship whether the employer actually exercises the right of control. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E. 2d 425; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515; Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227.

Did the injury and death of the decedent, which resulted from his being struck by an automobile on the street, arise out of and in the course of his employment by the City of Lexington as cemetery keeper?

The appellants argue that on the facts in the record as found by the Commission it was not a part of decedent's employment to visit funeral homes at night, and that the fatal accident which happened to him as he walked across the street was not one of the hazards of his employment.

But we think the facts found by the Industrial Commission bring this case within the purview of the Compensation Act. The words "in the course of the employment" relate to the time, place and circumstances under which an accidental injury occurs, and "arising out of the employment" refers to the origin or cause of the injury. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668, 672, and cases cited.

In order to constitute an injury as arising out of the workman's employment "there must be some causal relation between the employment and the injury; but, if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected." Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 269; Withers v. Black, supra; Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E. 2d 907, 910. The term "arising out of employment" must be interpreted "in the light of the facts and circumstances of each case, and there must be some causal connection between the injury and the employment." Wilson v. Town of Mooresville, supra.

" ``Arising out of' means arising out of the work the employee is to do or out of the service he is to perform. The risk must be incidental to the employment." Hunt v. State, 201 N.C. 707, 161 S.E. 203, 205.

The Industrial Commission expressed the view that the custom and practice of the decedent in this case to visit the funeral homes for the purposes as set out, incidental to his employment as cemetery keeper and known to the employer, would tend to aid in the interpretation of the contract of employment of the decedent. Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540.

When as an incident of his employment as cemetery keeper and in the performance of a duty connected therewith, as shown by the established custom, the decedent crossed the street en route to a funeral home, the hazard of the journey may properly be regarded as within the scope of the Compensation Act. Massey v. Board of Education, 204 N.C. 193, 167 S.E. 695.

We note the exceptions to the ruling of the Hearing Commissioner in the reception of testimony in several instances, which the appellants have brought forward in their appeal. These exceptions were overruled by the judge below, and we perceive no prejudicial effect therefrom material to the decision.

We have examined the appellants' brief and the cases cited in support of their well presented arguments, in connection with the evidence and the findings of fact made by the Industrial Commission but are unable to concur in the view that an erroneous conclusion was reached by the Industrial Commission and by the Judge of the Superior Court.

We think the judgment should be, and it is,

Affirmed.