Harden v. Thomasville Furniture Co.

Decision Date19 November 1930
Docket Number414.
PartiesHARDEN et al. v. THOMASVILLE FURNITURE CO. et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Davidson County; McElery, Judge.

Proceedings under the Workmen's Compensation Act by Amy Harden and another, claimants, opposed by the Thomasville Furniture Company, employer, and Hartford Accident & Indemnity Company insurance carrier. Judgment affirming an award dismissing the claim, and claimants appeal.

Affirmed.

Whether accident arose out of employment is mixed question of law and fact.

This is a proceeding under the North Carolina Workmen's Compensation Act (Pub. Laws 1929, c. 120), in which the plaintiffs seek compensation for the death of Robert Boozer Harden.

The case was first heard at Lexington on October 24, 1929, by J Dewey Dorsett, commissioner, who made an award dismissing the claim on the ground that the injury causing the death did not arise out of the employment of the deceased. The plaintiffs made application for a review of this award, which, after a hearing by the full commission, was duly affirmed. From this decision the plaintiffs appealed to the superior court and the award was again affirmed. The plaintiffs excepted and appealed to this court.

It appears from the statement of the case made by Commissioner Dorsett that Odell Bruton and the deceased had been in the employ of the Thomasville Furniture Company, Bruton as a sweeper working by day, and the deceased as a night watchman that between 1 and 3 o'clock on the night of August 2, 1929, Bruton, on account of domestic trouble between the two men, shot and instantly killed the deceased, while the latter was on duty as night watchman; that there is no evidence of ill will between them relating to any matter pertaining to their work; and that Bruton has been convicted of murder in the second degree and sentenced to imprisonment.

The commissioner found, as facts, that the deceased and the furniture company had accepted the provisions of the North Carolina Workmen's Compensation Act and the furniture company had insured its liability with its codefendant; that Bruton shot and killed the deceased from ambush; that the injury sustained by the deceased was not the result of an accident arising out of his employment by the furniture company; that Bruton's work in the day had no connection with that done by the deceased at night; that the homicide was the result of ill will and matters entirely personal to the two men and disassociated with the employment of either by the furniture company; that Bruton was not insane; that the average weekly wages of the deceased were $24.50; and that the plaintiffs were solely dependent upon the deceased at the time of his death.

The findings of fact were approved by the full commission, and the superior court found that the facts are supported by the evidence.

Walser & Walser and D. L. Pickard, all of Lexington, for appellants.

Spruill & Olive, of Lexington, for appellees.

ADAMS J.

As defined in the North Carolina Workmen's Compensation Act the word ""death," as a basis for a right to compensation, means death resulting from an injury; and "injury" and "personal injury" mean injury by accident arising out of and in the course of the employment, and do not include disease in any form unless it results naturally and unavoidably from the accident. Section 2 (f) and (j). The mere fact that an injury is the result of the willful or criminal assault of a third person does not prevent the injury from being accidental. Conrad v. Foundry Co., 198 N.C. 723, 153 S.E. 266. We understand it to be conceded that the injury resulting in the death of Robert Boozer Harden was accidental within the meaning of the act, and that it arose in the course of his employment. The gravamen of the controversy is the averment and contention that the death resulted from an injury by accident arising "out of" the employment. The commissioner's fourth finding of facts is to the effect that the injury sustained by the deceased was not the result of an accident arising out of his employment by the furniture company; and this finding was afterwards approved by the full commission.

Whether the accident arose out of the employment is not exclusively a question of fact; it is a mixed question of fact and law. Bryant v. Fissell, 84 N. J. Law, 72, 86 A. 458; Todd v. Easton Furniture Mfg. Co., 147 Md. 352, 128 A. 42. And so, no doubt, the commissioner and the full commission intended to treat it; the specific inquiry being whether from facts which are not in controversy it results as a legal inference that the accident did not arise out of the employment.

While the phrase "in the...

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    ...in a risk connected with the employment and to have flowed from that source as a rational consequence. See also Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728 (1930). So, contrary to the majority's intimation, this theory has long been a part of workers' compensation law in North In ap......
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