Casey v. Board of Educ. of City of Durham

• Decision Date: 31 May 1941
• Docket Number: 750.
• Citation: Casey v. Board of Educ. of City of Durham, 14 S.E.2d 853, 219 N.C. 739 (N.C. 1941)
• Parties: CASEY v. BOARD OF EDUCATION OF CITY OF DURHAM et al.
• Court: North Carolina Supreme Court

14 S.E.2d 853

219 N.C. 739

CASEY v. BOARD OF EDUCATION OF CITY OF DURHAM et al.

No. 750.

Supreme Court of North Carolina

May 31, 1941

This is a proceeding under the North Carolina Workmen's Compensation Act, Code 1939, § 8081(h) et seq., to determine the liability for injuries received by the plaintiff from an accident arising out of and in the course of his employment.

The facts found by the individual commissioner and adopted and affirmed upon appeal by the full commission and by the judge of the Superior Court are as follows:

"1. That the Board of Education, City of Durham, has accepted the provisions of the Compensation Law and the Travelers Insurance Company is the carrier.

"2. That the plaintiff, S. E. Casey, was employed as janitor or custodian of the Southside School, Durham, on a 12-months basis, and for eight months of this time was in part paid by the State School Commission, the remaining four months was paid from the local funds furnished through the Board of Education, City of Durham, and in addition thereto, was paid through the Board of Education, City of Durham's special funds for extra maintenance work performed out of regular hours; that for his services as custodian he received $18.00 per week, and for his extra work, approximately 30¢ per hour.

"3. That the plaintiff, S. E. Casey, and P. H. Melvin, night watchman of the Junior High School, Durham, were properly requested by the school officials to do some painting and maintenance work in a room at the Durham Junior High School on the night of November 29, 1939, so that the room would be ready for the use of the band following Thanksgiving; that on said night Casey, along with other custodians, attended a custodian's school, and at the conclusion of the school he and Melvin went to the premises of the Junior High School to engage in the work, when Casey accidentally fell from one concrete walk, which was elevated, onto another, about 9:30 p. m., falling on his right arm and shoulder; that said injury was by accident arising out of and in the course of said Casey's employment by the Board of Education, City of Durham; and that as a result of said injury he was totally disabled for a week and a half, when he returned to his former employment doing selective work, and receiving full wages until June 1 1940, when he was laid off because of his inability to do the more laborious maintenance work during the summer season that the plaintiff has definite limitation of the use of the injured right arm at the present time due to the injury by accident and that he is entitled to further medical care.

"4. That said Casey was not working for and was not being paid by the State School Commission at the time of his injury by accident, November 29, 1939.

"5. That for exceptional reasons it would be unfair to the employee to take his earnings for the extra work he was doing at the time of his injury to establish his average weekly wage, and, it is, therefore, necessary to use his full earnings to establish a wage that will most nearly approximate his earnings if he were not injured."

From judgment of the Superior Court affirming the award of the full commission "that said Board (Board of Education of the City of Durham) pay to the plaintiff compensation at the rate of $10.80 per week, for a week and a half's total disability, beginning November 29, 1939, and thereafter at said rate beginning as of June 1, 1940, and in addition thereto, furnish the plaintiff with additional, reasonable medical, surgical, and hospital care as may be necessary and pay for same after bills have been submitted to and approved by the commission, and specifically furnish reasonable treatment necessary for the injured shoulder. The question of permanent disability will be determined at a later date, if there is any," and dismissing the ...