155 S.E. 728 (N.C. 1930), 414, Harden v. Thomasville Furniture Co.

Docket Nº:414.
Citation:155 S.E. 728, 199 N.C. 733
Opinion Judge:ADAMS, J.
Party Name:HARDEN et al. v. THOMASVILLE FURNITURE CO. et al.
Attorney:Walser & Walser and D. L. Pickard, all of Lexington, for appellants. Spruill & Olive, of Lexington, for appellees.
Case Date:November 19, 1930
Court:Supreme Court of North Carolina
 
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Page 728

155 S.E. 728 (N.C. 1930)

199 N.C. 733

HARDEN et al.

v.

THOMASVILLE FURNITURE CO. et al.

No. 414.

Supreme Court of North Carolina

November 19, 1930

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.

Page 729

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...

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