Berry v. Colonial Furniture Co.

• Citation: 60 S.E.2d 97,232 N.C. 303
• Decision Date: 09 June 1950
• Docket Number: No. 741,741
• Parties: BERRY, v. COLONIAL FURNITURE CO. et al.
• Court: United States State Supreme Court of North Carolina

Page 97

60 S.E.2d 97

232 N.C. 303

BERRY, v. COLONIAL FURNITURE CO. et al.

No. 741

Supreme Court of North Carolina.

June 9, 1950

H. Clay Hemric, Burlington, for plaintiff appellee.

R. M. Robinson, Greensboro, for defendants appellants.

WINBORND, Justice.

Since the only assignment of error presented for decision on this appeal is based upon exception to the signing of the judgment, Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79, there arises this question: Do the facts found by the North Carolina Industrial Commission support the award of compensation to the claimant, approved by the judge of Superior Court? A negative answer is in keeping with decisions of this Court, applying pertinent provisions of the North Carolina Workmen's Compensation Act, now Chapter 97 of the General Statutes. See in particular Ridout v. Rose's Stores, Inc., 205 N.C. 423, 17 S.E.2d 642; Hildebrand v. McDowell Furniture Co., 212 N.C. 100, 193 S.E. 294; Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370; Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907; Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387. See also Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837.

In this connection, under the North Carolina Workmen's Compensation Act, Chapter 97 of the General Statutes, 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. See Taylor v. Town of Wake Forest, supra, where pertinent decisions of this Court are cited.

The words 'out of' refer to the origin or cause of the accident, and the words 'in the course of' to the time, place and circumstances under which it occurred. Conrad v. Cook-Lewis Foundry Co., 198 N. C. 723, 153 S.E. 266; Harden v. Thomasville Furniture Co., 199 N.C. 733, 155 S.E. 728; Hunt v. State, 201 N.C. 707, 161 S.E. 203; Ridout v. Rose's Stores, supra; Plemmons v. White's Service Inc., supra; Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342; Wilson v. Town of Mooresville, supra; Taylor v. Town of Wake Forest, supra; Matthews v. Carolina Standard Corp., N.C., 60 S.E.2d 93.

The term 'arising out of employment', it has been said, is broad and comprehensive and perhaps not capable of precise definition. It must be interpreted in the light of the facts and circumstances of each case, and there must be some causal connection between the injury and the employment. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594; Harden v. Thomasville Furniture Co., supra; Canter v. Board of Education, 201 N.C. 836, 160 S.E. 924; Walker v. I. D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89; Plemmons v. White's Service, Inc., supra; Wilson v. Town of Mooresville, supra; Taylor v. Town of Wake Forest, supra.

'Arising out of' in the language of Adams, J., in Hunt v. State [201 N.C. 707, 161 S.E. 205], supra, 'means arising out of the work the employee is to do or out of the service he is to perform. The risk must be incidental to the employment.' Harden v. Thomasville Furniture Co., supra; Chambers v. Union Oil Co., supra; Beavers v. Lilly Mill Power Co., 205 N.C. 34, 169 S.E. 825; Bain v. Travora Mfg. Co., 203 N.C. 466, 160 S.E. 301; Plemmons v. White's Service, Inc., supra; Wilson v. Town of Mooresville, supra; Taylor v. Town of Wake Forest, supra; Matthews v. Carolina Standard Corp., supra.

Applying these principles to the facts as found by the Industrial Commission, in the present case, it is obvious that the outing, or fishing trip, 'after the store had closed for the day's work' on Saturday, is not incidental to claimant's employment. And there is no causal relation between an injury by accident suffered while on such outing and the employment. The factual situation here is similar to that in Hildebrand v. McDowell Furniture Co., supra. In reversing an award of compensation there Clarkson, J., writing for this Court, said: 'The trip was an 'outing' not to further directly or indirectly the employer's business. The evidence in the case indicated that Wesley Williams was a volunteer in making the trip and that the trip was for pleasure and not for business.' [ 212 N.C. 100, 193...