McGill v. . Lumberton

BARNHILL, J., dissenting.

SCHENECK and DEVIN, JJ., concur in dissent. Proceeding under the North Carolina Workmen's Compensation Act for compensation on account of the death of V. R. McGill, chief of police of the town of Lumberton.

The hearing commissioner made findings of fact, pertinent portions of which are substantially these:

The body of V. R. McGill, chief of police of the town of Lumberton, was found on 18 November, 1936, in a room in the town building. He died as the result of a wound in the head inflicted by a bullet fired from a pistol owned by him. "No persons that might have murdered the chief of police have been indicted or apprehended." The death of the deceased did not arise out of or in the course of his employment, nor did the deceased suffer injury by accident arising out of and in the course of his employment resulting in his death.

Upon these findings the commissioner concluded as a matter of law: "Those claiming compensation under the provisions of the Workmen's Compensation Law are required to prove to the satisfaction of the Industrial Commission among other things an injury by accident arising out of and in the course of the employment before compensation can be awarded and if death results must prove that the death resulted from an injury by accident arising out of and in the course of the employment. After resolving every doubt in favor of the claimants in this case, we are of the opinion that the burden has not been sustained." Compensation was denied and in accordance therewith an award issued.

The Full Commission, on appeal thereto, in opinion rendered, states: "The actual cause of the death of . . . deceased . . . is unknown. However, there is a substantial amount of evidence in the record that he committed suicide." Then, after adverting to the decision in West v. Fertilizer Co.,201 N.C. 556, 160 S.E. 765, the opinion continues: "In the instant case, as expressed above, the Full Commission recognizes the fact that a police officer is exposed to peculiar danger; however, the evidence is clear that the shooting of the plaintiffs' deceased occurred in the day time, which does not in the opinion of the Full Commission present a presumption that he sustained an injury by accident arising out of and in the course of his employment as is held in the case of night watchmen where they are found at a place where they are expected to be, even though the motive of the assailant is unknown."

Thereupon, the Commission affirms the findings of fact, conclusions of law and the award of the hearing commissioner, and denies compensation, all of which was sustained on appeal to the Superior Court.

From judgment in accordance therewith, claimants appeal to the Supreme Court and assign error. Is there error in the judgment below? We are constrained to hold that there is.

As used in the North Carolina Workmen's Compensation Act, "The term `death' as a basis for the right of compensation means only death resulting from an injury," and "`injury' means an injury by accident arising out of and in the course of employment . . ." Public Laws 1929, ch. 120, sec. 2 (j) (f). Harden v. Furniture Co., 199 N.C. 733, 153 S.E. 728; Plemmonsv. White, 213 N.C. 148, 195 S.E. 370.

"The condition antecedent to compensation is the occurrence of an injury (1) by accident (2) arising out of and (3) in the course of employment."Conrad v. Foundry Co., 198 N.C. 723, 153 S.E. 260; Plemmons v. White,supra, and cases there cited.

The Workmen's Compensation Act, sec. 13, also provides in part that: "No compensation shall be payable if the injury or death was occasioned . . . by the willful intention of the employee to injure or kill himself . . ." and that "the burden of proof shall be upon him who claims an exemption or forfeiture under this section." Public Laws 1929, ch. 120.

Evidence of violent death, unexplained, suggests accident rather than suicide. Warren v. Ins., Co., ante, 402, 2 S.E.2d 17; Gorham v. Ins.Co., 214 N.C. 526, 200 S.E. 5.

While the burden of proof is upon those claiming compensation throughout to prove death of employee resulting from injury by accident arising out of and in the course of his employment, when evidence of violent death is shown, they are entitled at least to the benefit of the inference of accident from which, nothing else appearing, the Commission may find, but is not compelled to find, the fact of death resulting from injury by accident, a constituent part of the condition antecedent to compensation, injury by accident arising out of and in the course of employment. In other words, this inference is sufficient to raise a prima facie case as to accident only. Then if employer claims death of employee is by suicide, the statute places the burden on him to go forward with proof negativing the factual inference of death by accident. See Warren v. Ins. Co., supra.

In the case in hand claimants are entitled to have the Industrial Commission, in finding the facts, consider the evidence in the light of these legal principles. It appears that this has not been done.

Facts found under misapprehension of the law will be set aside on the theory that the evidence should be considered in its true legal light. S.v. Fuller, 114 N.C. 886, 19 S.E. 797; S. v. Casey, 201 N.C. 620.161 S.E. 81. The principle is also applied in Tickle v. Hobgood,212 N.C. 763, 194 S.E. 474; Bullock v. Williams, 213 N.C. 320, 195 S.E. 791;Farris v. Trust Co., ante, 466, 2 S.E.2d 363.

The case is remanded to the end that the North Carolina Industrial Commission, applying the legal principles here declared, may proceed to findings of fact and a determination of the claim in accordance with prescribed practice.

Error and remanded.