Francis v. Carolina Wood Turning Co

• Decision Date: 09 October 1935
• Docket Number: No. 17.,17.
• Parties: FRANCIS. v. CAROLINA WOOD TURNING CO. et al.
• Court: North Carolina Supreme Court

181 S.E. 628

208 N. C. 517

FRANCIS.

v.CAROLINA WOOD TURNING CO. et al.

No. 17.

Supreme Court of North Carolina.

Oct. 9, 1935.

Appeal from Superior Court, Swain County; Hill, Special Judge.

Action by Joe Francis, by his next friend Eve Francis, against the Carolina Wood Turning Company and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

See, also, 204 N. C. 701, 169 S. E. 654.

This is an action to recover damages for personal injuries suffered by the plaintiff while he was operating a cut-off or ripsaw in the plant of the defendant. It is alleged in the complaint that plaintiff's injuries were caused by the negligence of the defendant.

At the date of his injuries, and for about one year prior thereto, plaintiff was and had been an employee of the defendant, and as such employee had worked for the defendant in its wood-turning plant. Both the plaintiff and the defendant were subject to the provisions of the North Carolina Workmen's Compensation Act (Code 1931, § 8081(h) et seq.).

The plaintiff was injured on or about September 4, 1931. He went into the plant of the defendant during the morning of the day he was injured, and upon being informed by his foreman that there was no work in the plant for him that morning, he requested the foreman to permit him to use the cut-off or ripsaw for the purpose of making a table for his own use. The request was granted. While using the saw, plaintiff's hand was caught in the saw and was injured.

Shortly after he was injured, plaintiff instituted a proceeding before the North Carolina Industrial Commission for compensation under the provisions of the North Carolina Workmen's Compensation Act. Compensation was denied by the Industrial Commission on its finding that plaintiff's injuries were not the result of an accident which arose out of and in the course of his employment. Plaintiff did not appeal from the award denying compensation.

This action was begun in the superior court of Swain county. At the close of the evidence, on the motion of the defendant, the action was dismissed by judgment as of nonsuit. Plaintiff appealed to the Supreme Court.

Moody & Moody, of Murphy, and I. C. Crawford, of Bryson City, for appellant.

Johnston & Horner, of Asheville, for appellees.

CONNOR, Justice.

The judgment in this action is affirmed on the authority of Pilley v. Cotton Mills, 201 N. C. 426, 160 S. E. 479. The facts alleged in the complaint and admitted by the demurrer in that case are identical with the facts shown by all the evidence in the instant case. The demurrer was sustained by the superior court, and its judgment was affirmed by this court on plaintiff's appeal.

In the opinion in that case it is said: "Under the Workmen's Compensation Law, every employer and employee, except as...