Hildebrand v. McDowell Furniture Co.

OlabksoN, J.

Tbe question involved: Is there any sufficient competent evidence to support tbe finding of tbe Industrial Commission that tbe death of claimant’s deceased, Wesley Williams, was caused by accident arising out of and in tbe course of bis employment? We think not.

In Conrad v. Foundry Co., 198 N. C., 723, it is written (at p. 725) : “Tbe Workmen’s Compensation Law prescribes conditions under which an employee may receive compensation for personal injury. Section 2 (f) declares that ‘injury and personal injury shall mean only injury by accident arising out of and in tbe course of tbe employment, and shall not include a disease in any form, except when it results naturally and unavoidably from accident.’ Tbe condition antecedent to compensation is tbe occurrence of an (1) injury by accident (2) arising out of and (3) in tbe course of tbe employment. . . . (p. 727) : An accident arising ‘in tbe course of’ tbe employment is one which occurs while ‘the employee is doing what a man so employed may reasonably do within a time during which be is employed and at a place where be may reasonably be during that time to do that thing;’ or one which ‘occurs in the course of the employment and as the result. of a risk involved in the employment, or incident to it, or to conditions under which it is required to be performed.’ Bryant v. Fissell, 84 N. J. L., 72, Anno. Cas., 1918 B, 764; Marchiatello v. Lynch Realty Company, 94 Conn., 260, 108 Atl., 799. One of the risks involved in the employment is the liability of injury inflicted by fellow servants. Anderson v. Security Bldg. Co., supra (40 A. L. R., 1119). So it has been stated as a general proposition that the phrase ‘out of and in the course of the employment’ embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the master’s business. Annotation' — -Workmen’s Compensation, 1916 A, 41; Darleth v. Roach & Seeber Co., 36 A. L. R., 472.” The principles set forth in the above case have been approved by this Court in numerous decisions. „

It is said in Bellamy v. Mfg. Co., 200 N. C., 676 (678) : (Under the Workmen’s Compensation Act) “It is the well settled rule of practice in this jurisdiction, in eases of nonsuit and cases of this kind, that the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be draivn therefrom.”

In Southern v. Cotton Mills Co., 200 N. C., 165 (169), we find: “In Johnson v. Hosiery Co., 199 N. C., at p. 40, it is said: ‘See. 2 (b) undertakes to define tbe word employment and specifically excludes from the operation of the act “persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer,” etc. . . . It is further provided in section 60 that the award of the Commission “shall be conclusive and binding as to all questions of fact.” However, errors of law are reviewable. It is generally held by the courts that the various compensation acts of the Union should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.’ Rice v. Panel Co., 199 N. C., at p. 157.”

In Dependents of Poole v. Sigmon, 202 N. C., 172 (173), we find: “The findings of fact made by the North Carolina Industrial Commission, in a proceeding pending before the said Commission, are conclusive, on an appeal from said Commission to the Superior Court, only when there was evidence before the Commission tending to show that the facts are as found by the Commission. Otherwise, the findings are not conclusive, and the Superior Court, on an appeal from the award of the Commission, has jurisdiction to review all the evidence for the purpose of determining whether as a matter of law there was any evidence tending to support the finding by the Commission. West v. Fertilizer Co., 201 N. C., 556.”

The following question and answer were excepted to and assigned as error: “I know that Bolick was with the company. I saw the men in the McDowell space Sunday morning somewhere around 10 or 11 o’clock. I saw Mr. Bolick. I think it was around 11 o’clock when he left the building. Q. I believe, Mr. Casey, that these gentlemen from the McDowell Furniture Company had you to employ a couple of men to assist them there, is that so? Objection; overruled; exception. Ans.: Yes, sir, his representatives. Mr. Bolick asked for men and they were sent to the space.” This objection was assigned as error on appeal and overruled. We think this evidence incompetent, and it should have been excluded.

It is said in Hunsucker v. Corbitt; 187 N. C., 496 (503), citing a wealth of authorities: “ ‘Admissions by agents, made while doing acts within the scope of the agency, and relating to the business in hand, are admissible against the principal when such admissions may be deemed a part of the res gestos, but such admissions are not admissible to prove the agency; the agency must be shown aliunde before the agent’s admissions will be received.’ Lockhart’s Handbook on Evidence, sec. 154.” Jackson v. Tel. Co., 139 N. C., 347 (351).

Of course the answer exculpated all but Bolick, so the matter became immaterial. Much of the evidence objected to by defendant and for which assignments of error are made, we think not germane and immaterial.

On the whole evidence, we do not think that the death of Wesley Williams was such as set forth in the statute “arising out of and in the course of the employment.”

In Smith v. Sink, 211 N. C., 725 (727), Stacy, C. J., speaking to the subject for the Court, says: “When all the evidence, taken in its most favorable light for the plaintiff, fails to show any actionable negligence on the part of the defendant (citing numerous authorities). £It all comes to this, that there must be legal evidence of the fact in issue and not merely such as raises a suspicion or conjecture in regard to it.’ Walker, J., in S. v. Prince, 182 N. C., 788.”

In Ridout v. Rose’s Stores, Inc., 205 N. C., 423 (425), it is said: “It is obvious that from Saturday night until Monday morning the relation of employer and employee was suspended, and that there was no causal relation between the employment and the accident. Canter v. Board of Education, 201 N. C., 836; Dependents of Phifer v. Dairy, 200 N. C., 65. It follows that the death of the employees did not arise out of and in the course of their employment.”

In Jones v. Trust Co., 206 N. C., 214 (219), we find: “The facts found by the hearing Commissioner and approved by the Full Commission: ‘The plaintiff, on 29 October, 1931, while regularly employed by the defendant Planters National Bank and Trust Company, sustained an injury by accident as a result of an automobile wreck which occurred while he was en route to attend a meeting of the cotton committee for the purpose of procuring financial information for the use of the bank. The accident arose out of and in the course of the plaintiff’s employment.’ . . . (p. 220) : We think the evidence was sufficient to sustain the finding of fact by the Industrial Commission and approved by the court below, that plaintiff on the trip when he sustained the injury ‘while he was en route to attend a meeting of the cotton committee for the purpose of procuring financial information for the use of the bank.’ ”

The facts here indicate, from all the evidence, that Wesley Williams was not about his employer’s business when he was killed in an automobile accident. His regular work ceased at 12 o’clock on Saturday, 18 July, 1936. He could work overtime, for which he received extra pay. At first he declined the invitation to visit the furniture exhibition at High Point, as he had a date with his girl. He changed his mind, put on his Sunday clothes and went. He did not work for his employer on the trip and he was not compelled to go.

Pertinent facts: Wesley Williams was a foreman of the glue room. Looking at other exhibits of furniture at High Point could gain him no ideas to further his employer’s business. In fact, Bolick did not call upon Wesley Williams, but obtained two men from the exhibition organization to help him assemble the McDowell Furniture Company’s exhibit. Bolick paid the “boys’ ” expenses to give them “a little outing.” Williams was doubtful about going when Bolick “told him I would like for him to go,” and Bolick did not know he was going until he saw him in High Point. Williams worked by the hour, his week began Monday morning and ended at 12 o’clock on Saturday — 45 hours a week. He was not taken to High Point to work and no pay was allowed. No order was given him. Only “a courtesy to the folks at the plant.” Bolick paid the hotel bill, but Williams returned it before he left by giving Bolick $5.00. He said, “There is my hotel expenses.” The McDowell Furniture Company always gave Bolick an expense cheek when he went off on trips, and he used that to pay the hotel expenses, but did not pay for all the meals. It was not a part of Williams’ employment that he should attend the furniture show. “The only reason he went this time was merely for his personal pleasure.” Williams left with those he came with, at 2 o’clock Sunday afternoon, before Bolick left. E. C. Terry’s testimony was to the effect: “I did not receive any extra pay for the time that I was away from Marion going on that trip.” We were going on “merely an outing.” “Didn’t go there to do any work. All of us put on our Sunday-go-to-meeting clothes and weren’t in working clothes. I was not under the direction of anybody.”

B. T. Ragan’s testimony was to the effect: That Bolick said “all of us who wanted to go they’d be glad for us to go along,” that expenses would be paid. Williams said he didn’t believe he would go, he “had a date with his girl.” Left about 12:30 for High Point and Williams went. “I know that Wesley Williams wasn’t under any orders to go and come at any particular time.” “Was going merely on a pleasure trip and not to do any work, and that was the purpose of all.” No working clothes taken.

The testimony of Clifton Byrd, left in charge of the glue room, that he and others worked overtime on “special order” and got paid for the work, is immaterial and of no probative force.

Fred Mathis’ testimony was to the effect that he worked overtime in the glue room and Wesley Williams left for High Point at 12 :25 and Bolick asked him to go. “Said he did not know whether he would go as he had a date with his girl that afternoon.”

We have set forth the evidence fully and with care, and we cannot say that there was any sufficient competent evidence to sustain plaintiff’s claim. The trip was an “outing,” not to further directly or indirectly the employer’s business. The evidence in the case indicated that Wesley Williams was a volunteer in making the trip and that the trip was for pleasure and not for business. We think this case distinguishable from the case of Foster v. Culpepper Sales & Service Co., Inc., Opinions Industrial Commission of Virginia (February, 1937), Vol. 18, No. 12, p. 364.

It was an unfortunate and deplorable accident. The party on the return trip to Marion was being driven by Wesley Williams. The rear tire blew out, the car turned over, and Williams was killed. The car belonged to E. C. Terry and not to defendant company.

For the reasons given, the judgment of the court below is

Eeversed.

WiNBORNE, J., took no part in the consideration or decision of this case.