Arp v. E. A. Wood & Co

• Decision Date: 19 September 1934
• Docket Number: No. 19.,19.
• Citation: 207 N.C. 41,175 S.E. 719
• Court: North Carolina Supreme Court
• Parties: ARP. v. E. A. WOOD & CO. et al.

175 S.E. 719

207 N.C. 41

ARP.

v.E. A. WOOD & CO. et al.

No. 19.

Supreme Court of North Carolina.

Sept. 19, 1934.

Appeal from Superior Court, Macon County; McElroy, Judge.

Proceeding under the Workmen's Compensation Act by Lee Arp, employee, against E. A. Wood & Company, employer, and the United States Fidelity & Guaranty Company, in surance carrier. From a judgment affirming a decision and award of the Industrial Commission, plaintiff appeals.

Affirmed.

This was an action instituted under the Workmen's Compensation Act, chapter 133A Consolidated Statutes of North Carolina (Acts of 1929, chapter 120), for serious personal injuries sustained by the plaintiff on July 14, 1930, and serious facial and head disfigurement as a result of the injury, and heard before his honor, McElroy, Judge, at the April term, 1934, of the superior court of Macon county, upon appeal by the plaintiff from the decision and award of the full commission. Affirmed.

E. P. Stillwell, of Sylva, for appellant.

J. M. Horner, Jr., of Asheville, Thos. A. Banks, of Garner, and F. M. Tongue, of Asheville, for appellees.

SCHENCK, Justice.

On February 17, 1931, the plaintiff was awarded the following: (1) Compensation for temporary total disability, $18 per week for 23³/₇₇ weeks; (2) for 40 per cent. loss of visibility in right eye, $18 per week for 40 weeks; (3) for total loss of left eye, $18 per week for 100 weeks; and (4) a lump sum of $2,500 to cover serious facial and head disfigurement--all of which amounted to $5,441.71. The cause was then retained for further hearing.

At a hearing on the 7th of June, 1931, it was found that the plaintiff had suffered a 50 per cent. loss of the use of his left hand which would extend over a period of 75 weeks, and at $18 per week would aggregate $1,350. Commissioner Wilson adjudged that, since $1,350 added to the $5,441.71 theretofore paid would exceed $6,000, the plaintiff would be entitled to recover only $558.29 of the $1,350, as the total compensation payable should in no case exceed $6,000.

There was an appeal from Commissioner Wilson and his adjudication was reviewed and affirmed by the full commission, and further appeal was taken to the superior court, where the decision and award of the full commission was affirmed by the judgment of McElroy, Judge. From this judgment affirming the action of the North Carolina Industrial Commission in holding, as a matter of law, that the $2,500 lump-sum payment to the plaintiff for serious facial and head disfigurement was within and constituted a part of the maximum compensation of $6,000 pro-vided by the act, the plaintiff appealed to this court.

Section 8081(kk), Code 1931, fixes a maximum and minimum weekly rate to be paid in cases of total disability, and the maximum number of weeks that such payments shall be made, and...