Poteete v. North State Pyrophyllite Co. , 240 N.C. 561 ( 1954 )

82 S.E.2d 693 (1954) 240 N.C. 561

POTEETE
v.
NORTH STATE PYROPHYLLITE CO. et al.

No. 670.

Supreme Court of North Carolina.

July 9, 1954.

A. C. Davis, Greensboro, for plaintiff, appellee.

Jordan & Wright and Perry C. Henson, Greensboro, for defendants, appellants.

PARKER, Justice.

The correctness of the award is challenged on the ground that the evidence does not support the finding that claimant's injury arose out of and in the course of his employment. G.S.N.C. § 97-2(f); Lewter v. Abercrombie Enterprises, Inc., N.C. 82 S.E.2d 410; Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E.2d 93.

We have held in the following cases where an employee, while about his work, suffers an injury in the ordinary course of employment, the cause of which is not explained, but which is a natural and probable result of a risk thereof, and the Commission finds from the evidence that the injury arose out of the employment, an award will be sustained. Morgan v. Cleveland Cloth Mills, 207 N.C. 317, 177 S.E. 165; Maley v. Thomasville Furniture Co., 214 N.C. 589, 200 S.E. 438; Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20; DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77. "There is surprisingly little contra authority." Larson's Workmen's Compensation Law, Vol. 1, p. 100.

In the Morgan case the indications were he slipped on some ice, or stumbled over some lumber or a hand truck on an unlighted platform, and fell to the frozen ground. In the Maley case claimant was seen working in front of a running saw with a fresh bleeding place on his arm. In the Robbins case claimant, while reaching up in a rack in the work she was doing, fell. In the DeVine case the claimant was required to stand on a platform to lower a flag from a flag pole each day. He was found unconscious at the bottom of the flag pole with ropes of the flag pole tangled with his body.

It is settled law that "Where an injury cannot fairly be traced to the employment as a contributing proximate cause * * * it does not arise out of the employment." Bryan v. T. A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, 754; Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342; Walker v. J. D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89.

If claimant's injury did not arise out of and in the course of his employment, it is not compensable. Lewter v. Abercrombie Enterprises, Inc., supra; Berry v. Colonial Furniture Co., 232 N.C. 303, 60 S.E.2d 97. Both are necessary to justify an award. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680; Withers v. Black, 230 N.C. 428, 53 S.E.2d 668.

We said in Bell v. Dewey Brothers, Inc., supra [236 N.C. 280, 72 S.E.2d 682]: "``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]; Berry v. Colonial Furniture Co., [232 N.C. 303, 60 S.E.2d 97]."

Whether an accident arose out of the employment is a mixed question of law and fact. Matthews v. Carolina Standard Corp., supra; Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370.

The Commission found that claimant "walked about 25 steps away from the chute and the crusher, and sat down on a wall * * *; that he sat down on the wall to rest a moment, and to see if the machinery started off all right, intending thereafter, when his services to the company had ended, and there was a lull which would not interfere with the work, to speak to John Moody about the $10.00; that John Moody went to the switchboard and started the machinery, and plaintiff was watching the belts to see that they were running * * *; that the machinery started and at that moment plaintiff experienced a sensation of ``turning blind' which is his last remembrance * * *." The Commission further found that at the time claimant "fell from the wall, he was still acting in his capacity as foreman, * * *, was rendering services to his employer in that capacity * * *."

In our opinion, the evidence, most favorably considered for claimant, does not support such findings. Claimant returned to the plant twice on the evening he was injured, on personal business, to collect from Moody $10 Moody owed him. Claimant testified: "We started working and after we got it unstopped, I went over to a shed and sat down on a wall over there. Up until that time, when I went over and sat down, I had not said anything to Moody about the money he owed me. We were busy fixing to start back up, and I hadn't mentioned it. I was waiting until he had a lull to speak to him about the money, waiting until he had a chance. You can feed the crusher a little faster than it will grind. I was waiting until we got to running, and he could stop and I could see him about it. Well, I sat down there. I was going to see him about the money, yes, but I wanted him to get everything running before I started talking to him. I wasn't going to interfere on company time. As soon as he got over his activity there and had a lull and it wouldn't interfere with his work, I was going to ask him about the money." Claimant further testified: "I was watching the belts to see that the belts was running. See, each belt was starting and I was watching them, and I come out and in a minute or two, not over two minutes I wouldn't think, and he got up on the payloader there and started to feed the thing after everything had started up and that's the last I knowed. It couldn't have been over two or three minutes between the time that I got down off the chute until I fell off the wall."

Moody, plaintiff's witness, testified after the chute was unchoked, he and claimant stood around a few minutes talking, and saw the material was coming through all right. Claimant then walked to the wall, and sat down. Moody had been at work half an hour when he heard claimant yell; he turned, and saw claimant going over the wall backward. During this 30 minutes claimant did no work whatsoever.

The other witnesses shed no light on these facts. Incidentally, the evidence shows claimant worked at the chute around 20 minutes or a little over, according to his testimony; 20 to 30 minutes, according to Moody, though the Commission found claimant worked 30 to 40 minutes.

It is true the accident took place on defendant's premises. It is equally true claimant returned to the premises after his day's work was over on his personal business to collect $10 John Moody owed him; that the chute was unchoked and the machinery was working; and that claimant was sitting on the wall so that, in his words, as soon as John Moody "got over his activity there and had a lull, and it wouldn't interfere with his work, I was going to ask him about the money." Whether he had been sitting on the wall 2 or 3 minutes or 30 minutes before his fall is immaterial. It would seem that the injury could not be held an accident resulting from a risk incident to his employment. There appears no causal relationship between his employment as foreman and the injury he received. Bell v. Dewey Brothers, Inc., supra; Matthews v. Carolina Standard Corp., supra; Beavers v. Lily Mill & Power Co., 205 N.C. 34, 169 S.E. 825.

It can hardly be said that claimant's injury arose "out of and in the course of his employment," both of which are necessary to justify an award under the Workmen's Compensation Act. Beavers v. Lily Mill & Power Co., supra; Hunt v. State, supra.

In the light of the undisputed evidence, we are constrained to hold that claimant was not injured by accident arising out of and in the course of his employment.

Reversed.