Chambers v. Union Oil Co., Inc.

• Decision Date: 16 June 1930
• Docket Number: 607-D.
• Citation: 153 S.E. 594,199 N.C. 28
• Parties: CHAMBERS v. UNION OIL CO., Inc., et al.
• Court: North Carolina Supreme Court

153 S.E. 594

199 N.C. 28

CHAMBERS v. UNION OIL CO., Inc., et al.

No. 607-D.

Supreme Court of North Carolina

June 16, 1930

Appeal from Superior Court, Buncombe County; Sink, Special Judge.

Proceeding under the Workmen's Compensation Act by Ormond E Chambers, opposed by the Union Oil Company, Inc., employer and the Maryland Casualty Company, insurer.An award of compensation was affirmed by the superior court, and employer and insurer appeal.

Affirmed.

Industrial Commission's findings, supported by evidence, are conclusive as to facts.

The plaintiff filed a claim with the Industrial Commission for compensation for an injury resulting from the accidental discharging of a pistol.Compensation was awarded by Commissioner Allen, and the defendants appealed to the full commission, where the award was affirmed.Thereupon the defendants appealed to the superior court of Buncombe county.The trial judge, after hearing the cause, entered a decree "that the judgment and award of the Industrial Commission heretofore made be and the same hereby is in all respects affirmed."

The opinion by Commissioner Allen is set out in full in the record.The facts are substantially as follows:

"The defendants were wholesale distributors of oil and employed the plaintiff and P. E. Loven as truck drivers to deliver oil.These drivers collected money as sales were made and sometimes carried as much as $800.00.Previous to the injury complained of Loven had been held up on one of his trips and either robbed or an attempt was made to rob him.Thereafter Loven carried a pistol for the protection of his employer's property.Parker, vice-president of the defendant, 'thought the drivers were carrying pistols, but had no positive knowledge of that fact.'

"On September 7, 1929, the plaintiff was filling a fuel tank on a truck driven by him.The truck driven by Loven was also near the tank.Loven went to his truck to get his order book which was in the pocket of the truck under his pistol.Loven took the pistol out of the truck and plaintiff asked him where he was going with 'that old smoke pole' and that 'that gun won't shoot.'Thereupon Loven threw the pistol back into the truck and it accidentally discharged, the bullet entering plaintiff's foot."

There was also evidence that Loven went over to where plaintiff was at work for the purpose of showing him the pistol, and they were standing side by side when the pistol discharged.All the evidence was to the effect that the pistol discharged accidentally.

The pertinent portions of the findings of fact by the Industrial Commission are as follows: "From a consideration of all the evidence the Commissioner finds that the plaintiff sustained an injury on the 7th day of September, 1929, which injury arose during the course of the employment; that the employer had not forbidden the carrying of pistols by its truck drivers, but in fact thought pistols were being carried by them; that inasmuch as the employer thought the drivers were carrying pistols and took no action to discourage the practice is tantamount to sanctioning such practice, and that by such sanction the ordinary dangers from such use of pistols become hazards incident to the plaintiff's employment, hazards to which the general public is not exposed, that the accident arose out of the employment, therefore, as well as in the course of the employment; that the burden was upon the defendants to prove the alleged "horseplay' which consists of 'sky larking' or 'sportive acts'; that the defendants have failed to establish the fact of 'horseplay'; that at the time of the accident neither the plaintiff nor Loven had abandoned his employment; that by the greater weight of the evidence the plaintiff has met all of the requirements of the North Carolina Workmen's Compensation Act, and is entitled to recover.It is admitted in this case that claimant was at all times during the conversation between himself and his co-employee, actually engaged in the filling of a tank with oil, so it cannot be said by any view of the evidence that claimant participated in any kind of sky-larking or play," etc.

From judgment rendered by the superior court, the defendants appealed.

J. M. Horner, Jr., of Asheville, for appellants.

Lee & Lee, of Asheville, for appellee.

BROGDEN J.

Two questions of law are presented for decision: First, did the injury to plaintiff arise out of and in the course of the employment?Second, if the injury was the result of horseplay, is the plaintiff entitled to compensation?

The first question of law involves a construction of section 2(f) of the Compensation Act(Pub. Laws 1929, c. 120).The section reads as follows: "'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident."

The record in the case at bar discloses that the plaintiff was injured while actually engaged in the proper performance of his work.Hence it must be conceded that the injury was sustained while he was "in the course of the employment."The term "arising out of the employment" is broad and comprehensive and perhaps not capable of precise definition.It must always be interpreted in the light of the facts and circumstances of the given case.Usually the courts have insisted that there must be some causal connection between the injury and the employment.However, the basic idea of the term is that the employment of workers in industry creates certain risks to which employees are subjected in the performance of their duties.It is apparent that the risk of one employment would differ from the risk of another employment, and therefore no iron rule of liability can be applied in all cases.

The Compensation Act does not apply to any industry employing less than five workmen, and hence the act itself contemplates that successful industrial operation presumes the assembling of workers in one place who are engaged in various phases of...