5 S.E.2d 540 (N.C. 1939), 522, Smith v. City of Gastonia

Docket Nº:522.
Citation:5 S.E.2d 540, 216 N.C. 517
Party Name:SMITH v. CITY OF GASTONIA et al.
Case Date:November 22, 1939
Court:Supreme Court of North Carolina

Page 540

5 S.E.2d 540 (N.C. 1939)

216 N.C. 517




No. 522.

Supreme Court of North Carolina

November 22, 1939

This was a proceeding before the North Carolina Industrial Commission upon a claim of Mrs. Laura R. Smith v. the City of Gastonia, the Gastonia Athletic Association, Employers, and American Employers' Insurance Company, Carrier. During the proceeding the claim as to Gastonia Athletic Association was disallowed for want of any evidence of liability, and as to this there was no appeal. The present controversy concerns the liability of the City of Gastonia and the American Employers' Insurance Company only. The cause was heard by Commissioner Dorsett, and upon appeal by the defendants from adverse

Page 541

findings of fact and conclusions of law by the hearing Commissioner the matter was heard by the full Commission, and the opinion was filed and award made on October 24, 1938. From this there was an appeal to the Superior Court, where the award was affirmed, and, thereupon, the defendants appealed to this Court.

Leaving out the more formal part of the evidence, as to which there is no controversy, the facts disclosed are substantially as follows:

At the time of his injury and death John Hazel Smith was employed by the City of Gastonia in the capacity of motorcycle policeman. Certain hours were prescribed during which the policeman was said to be "on duty", but it was also one of the duties of his employment to arrest at any time violators of the law or to prevent infractions of peace within the city limits and he was also at all times "on call". At the particular time his "on duty" hours, in the sense above named, had expired, and he was riding home on the motorcycle furnished him by the city.

As to this, the evidence tended to show that at the time he was sworn in he was provided with a motorcycle and other equipment necessary to the discharge of his duties, and as to the motorcycle he was given the entire responsibility and care for it, and it was understood that he might keep it at the Town Hall or at his home, according to his preference. He had been keeping it in the garage at home. Smith used the motorcycle in the discharge of his duties as a policeman within the city limits, and used it as a means of transportation to his home when the hours for his more exacting duties had elapsed, and this was through the authorization of the...

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