Davis v. North State Veneer Corp.

• Decision Date: 27 January 1931
• Docket Number: 403.
• Citation: 156 S.E. 859,200 N.C. 263
• Parties: DAVIS v. NORTH STATE VENEER CORPORATION et el.
• Court: North Carolina Supreme Court

156 S.E. 859

200 N.C. 263

DAVIS v. NORTH STATE VENEER CORPORATION et el.

No. 403.

Supreme Court of North Carolina

January 27, 1931

Appeal from Superior Court, Davidson County; MacRae, Special Judge.

Proceeding under the Workmen's Compensation Act by Ada Davis dependent widow of Tom Davis, deceased employee, opposed by the North State Veneer Corporation, employer, and the American Mutual Liability Insurance Company, insurer. From a judgment affirming an award of the Industrial Commission, the employer and insurer appeal.

Reversed.

To impose liability on employer for employee's death by virtue of custom, proof must be clear as to antiquity duration, and universality of custom.

This was a proceeding before the North Carolina Industrial Commission for compensation for the death of plaintiff's intestate. The facts are clearly and accurately stated by Commissioner Dorsett, as follows:

"Tom Davis worked on the day shift for the North State Veneer Corporation. He lived in Lexington, North Carolina, and worked in Thomasville, North Carolina. He usually went home over each week end, when his wife would cook sufficient rations for his subsistence the following week. Tom Davis, the deceased, as above stated worked in the day time and slept on the premises of his employer at night. The employer knew that Tom was sleeping on the premises and did not object to this. Tom was permitted to sleep there for his own convenience, the employer not expecting any service from Tom in exchange for allowing him to sleep there.

"On the evening of the accident it seems that a piece of machinery in the plant of the employer broke down about nine o'clock and as was customary on the night of the breakdown none of the bosses or superintendents were present at the plant. The custom was for the superintendent to give what orders he desired followed before going home for the day and the night employees were expected to carry out such orders. When the machinery broke down, the deceased knowing where the foreman lived, volunteered to go and get said foreman to repair the machinery since none of the employees on the job that night knew anything about repairing that certain piece of machinery which had broken down. Tom had no orders to go for the foreman but went voluntarily. The evidence is that had certain machinery not been repaired at once certain veneering would have been ruined. It is also in evidence that on two or three occasions prior to this occasion Tom Davis had gone to the home of the foreman to report certain breakdowns and to show other employees who had to see the foreman on business where the said foreman lived. It is also in evidence that for such trips Tom never received any remuneration. He never asked for any. On the evening of the fatal accident, however, it seems that Tom, before leaving the plant for the home of the foreman, punched the time clock and then set out on his journey, and while going to the home of the foreman he suffered an accident when an automobile driven by a hit and run driver struck him. Tom was found around midnight by the foreman to whose home he was going and another gentleman. He was carried to High Point to a hospital where he died some two or three days later."

Upon the foregoing facts the Commission found that the employee was injured ""in the course of his employment" and made an award. The defendants appealed to the superior court, and the trial judge approved the award, from which judgment the defendants appealed.

Manly, Hendren & Womble, of Winston-Salem, for appellants.

W. O. Burgin and Walser & Walser, all of Lexington, for appellee.

BROGDEN J.

Was the death of plaintiff occasioned "by accident arising out of and in the course of the employment"?

"In order that there may be recovery the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. It is not easy *** to give a comprehensive definition of these words *** an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises 'out of' the employment, when there is *** a causal connection between the conditions under which the work is required to be performed and the resulting injury. *** If the injury can be seen *** to have been contemplated by a reasonable person familiar with the whole situation *** then it arises 'out of' the employment. *** The causative danger must be peculiar to the work and not common to the neighborhood." Chief Justice Rugg, in McNicol's Case, 215 Mass. 497, 102 N.E 697, L....