Conrad v. Cook-Lewis Foundry Co.

• Decision Date: 21 May 1930
• Docket Number: 409.
• Parties: CONRAD v. COOK-LEWIS FOUNDRY CO. et al.
• Court: North Carolina Supreme Court

153 S.E. 266

198 N.C. 723

CONRAD v. COOK-LEWIS FOUNDRY CO. et al.

No. 409.

Supreme Court of North Carolina

May 21, 1930

Appeal from Superior Court, Guilford County; Lyon, Emergency Judge.

Proceedings under the Workmen's Compensation Act by Wade O. Conrad employee, claimant, opposed by the American Mutual Liability Insurance Company, insurance carrier, and the Cook-Lewis Foundry Company, employer. Award of compensation to claimant was modified by the superior court, and the insurance carrier appeals.

Remanded.

This is a proceeding brought by the plaintiff under the Workmen's Compensation Act to recover compensation for permanent disability alleged to have been caused by the infliction of personal injury.

The proceeding was commenced on August 28, 1929; on September 10 1929, the parties appeared before Matt H. Allen commissioner; and on September 28 he made an award. His finding of facts are as follows:

(1) That on the 20th day of July, 1929, at about 9 o'clock a. m., the plaintiff was injured as the result of an accident which arose out of and in the course of his employment.

(2) That as a result of his injury the plaintiff has been totally disabled within the meaning of the North Carolina Workmen's Compensation Act, is now so disabled, and that total disability will in all probability continue for some time.

(3) That the injury sustained by the plaintiff is of such a nature that total disability may be followed by a more or less extended period of partial disability; Dr. J. L. Sowers, who attended the plaintiff, having testified that the plaintiff had a large gunshot wound in his right side, the wound being about two inches deep and about one inch in diameter, and that about two-thirds of the plaintiff's lung is compressed and not in use, and that the plaintiff will never be able to use all of his lung.

(4) That the plaintiff and the defendants are bound by the provisions of the North Carolina Workmen's Compensation Act.

Upon the facts he made this award:

(1) That the accident which resulted in injury to the plaintiff arose in the course of his employment, as the plaintiff was engaged in the performance of the duties required by his employment at the time of the accident.

(2) That there was a causal connection between the accident and the employment of the plaintiff, in that the plaintiff, as an incident to his employment, had a right to require that his assailant, a colored fellow workman, treat him with proper respect.

(3) That, there having been a causal connection between the accident and the employment, the accident arose out of the employment.

(4) That the accident arose out of and in the course of the employment, and, the parties, plaintiff and defendant, having been subject to the provisions of the North Carolina Workmen's Compensation Act, the plaintiff is entitled to compensation for his injury.

It is therefore ordered that an award be made against the defendants, and each of them, to pay to the plaintiff compensation for total disability beginning from July 19, 1929, and continuing during total disability for a period not to exceed four hundred weeks, at the rate of $18 per week, payable weekly, and that the defendants pay for medical and surgical services and hospital bills. That this cause be retained for further hearing to determine the extent of permanent partial disability, if any.

His award was thereafter reviewed by the full commission and affirmed. The carrier appealed to the superior court, and Judge Lyon modified the award by limiting the compensation to $6,000, and affirmed it in all other respects. He gave judgment accordingly, and the carrier appealed to the Supreme Court upon error assigned.

King, Sapp & King, of Greensboro, for appellant.

Walser & Walser, of Lexington, for appellee.

ADAMS J.

The claimant and a colored man named Dolly Squires were employees of the Cook-Lewis Foundry Company--the plaintiff a moulder and Squires a helper. They engaged in a conversation pertaining to their work, and Squires addressed to the claimant language deemed by the latter to be insulting. The claimant then struck Squires with a shovel. Squires left the shop, went to the employer's office, and received his wages. About half an hour later he went back to the shop, put the barrel of a shotgun through a hole in the wall, and shot the plaintiff in the back, thereby inflicting serious and permanent injury.

The Workmen's Compensation Law (Pub. Laws 1929, c. 120) prescribes conditions under which an employee may receive compensation for personal injury. Section 2(f) declares that "'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 condition antecedent to compensation is the occurrence of an (1) injury by accident (2) arising out of and (3) in the course of the employment.

Was the injury suffered by the claimant an injury by accident? In construing the word "accident" as used in the Compensation Act, we must remember that we are not administering the law of negligence. Under that law an employee can recover damages only when the injury is attributable to the employer's want of due care; but the act under consideration contains elements of a mutual concession between the employer and the employee by which the question of negligence is eliminated. "Both had suffered under the old system; the employers by heavy judgments, *** the workmen though the old defenses or exhaustion in wasteful litigation. Both wanted peace. The master, in exchange for limited liability, was willing to pay on some claims in future, where in the past there had been no liability at all. The servant was willing not only to give up trial by jury, but to accept far less than he had often won in court; provided he was sure to get the small sum without having to fight for it." Stertz v. Industrial Ins. Commission, 91 Wash. 588, 158 P. 256, 258, Ann. Cas. 1918B, 354.

The result was that the Compensation Law discarded the theory of fault as the basis of liability and conferred an absolute right of compensation on every employee who is injured by an "accident arising out of and in the course of the employment." Smith v. Light Co., 198 N.C. 614 152 S.E. 805. The word "accident," as used here, has been defined as an unlooked for and untoward event which is not expected or designed by the person who suffers the injury. Annotation, Workmen's Compensation, L. R. A. 1916A, 227; Furst Kerber Cut Stone Co. v. Mayo, 82 Ind.App. 363, 144 N.E. 857. In Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188, it is said that the courts, looking at the matter from the workman's viewpoint, and construing the legislative intent as...