Gallimore v. Marilyn's Shoes

• Decision Date: 14 April 1977
• Docket Number: No. 24,24
• Citation: 233 S.E.2d 529,292 N.C. 399
• Court: North Carolina Supreme Court
• Parties: Margaret Eleanora GALLIMORE, mother, and John Ray Gallimore, father, of Bonnie Lynn Gallimore, Deceased, Employee v. MARILYN'S SHOES, Employer, Bituminous Casualty Corp., Carrier.

Page 529

233 S.E.2d 529

292 N.C. 399

Margaret Eleanora GALLIMORE, mother, and John Ray Gallimore, father, of Bonnie Lynn Gallimore, Deceased, Employee v. MARILYN'S SHOES, Employer, Bituminous Casualty Corp., Carrier.

No. 24.

Supreme Court of North Carolina.

April 14, 1977.

Harold I. Spainhour, High Point, for plaintiffs-appellees.

Horton, Singer, Michaels & Hinton by Walter L. Horton, Jr., Raleigh, for defendants-appellants.

MOORE, Justice.

For an injury to be compensable under our Workmen's Compensation Act (Chapter 97 of the General Statutes of North Carolina), the claimant must prove three elements: (1) That the injury was caused by an accident; (2) that the injury arose out of the employment; and (3) that the injury was sustained in the course of employment. G.S. 97-2(6); Bryan v. Church, 267 N.C. 111, 147 S.E.2d 633 (1966). The findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence. However, the determination of whether an accident arises out of and in the course of employment is a mixed question of law and fact, and this Court may review the record to determine if the findings and conclusions are supported by sufficient evidence. G.S. 97-86; Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Lewter v. Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410 (1954).

An assault may be an accident within the meaning of the Workmen's Compensation Act when it is unexpected and without design on the part of the employee who suffers from it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949). Under the facts in this case we hold that the assault upon Miss Gallimore was an accident within the purview of the Workmen's Compensation Act.

We are thus confronted with the issue of whether the finding by the Commission that Miss Gallimore's death was caused by an injury "arising out of" and "in the course of" her employment with Marilyn's is supported by the evidence in the record. The phrases "arising out of" and "in the course of" one's employment are not synonymous but rather are two separate and distinct elements both of which a claimant must prove to bring a case within the Act. In general, the term "in the course of" refers to the time, place and circumstances under which an accident occurs, while the term "arising out of" refers to the origin or causal connection of the accidental injury to the employment. See, e. g., Watkins v. City of Wilmington, 290 N.C. 276 225 S.E.2d 577 (1976); Robbins v. Nicholson, supra. As was stated in Bryan v. Church, supra, 267 N.C. at 115, 147 S.E.2d at 635, the reason for the requirement that an injury arise from the employment is to prevent "our (Workmen's Compensation) Act from being a general health and insurance benefit act." See also Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968).

In the cases of Robbins v. Nicholson, supra, and Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728 (1930), this Court has extensively analyzed the term "arising out of" the employment. In Robbins v. Nicholson, supra, the claimants were the survivors of two deceased employees of a grocery store. It appeared from the evidence that on Christmas day, 1967, the husband of one of the deceased employees entered the grocery with a rifle and shot his wife and a co-worker. The shootings had their origin in domestic problems which had arisen between the assailant husband and his wife. The Commission awarded recovery to the survivors. This Court reversed, holding that while the injuries occurred "in the course of" the employment, they did not "arise out of" that employment. In reaching this conclusion, the Court quoted the following from Harden v. Furniture Co., supra, 199 N.C. at 735, 155 S.E. at 730:

" '. . . The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.' "

The Court further held that to be compensable, the injury must be caused by a risk which is reasonably related to and created by the employment. Since the origin of the shootings of the two employees had no relation to their employment, this Court held that no recovery was proper.

In Harden v. Furniture Co., supra, the plaintiff was the widow of a deceased employee. The employee was a night watchman and was slain while on the job by a fellow employee. The motive for the slaying was rooted in personal animosity between the two men. This Court denied recovery holding that the death did not arise out of the employment. In its opinion, the Court reasoned that to be compensable the injury must have a causal connection with the conditions under which the work is performed. Accordingly, where the assault upon the employee grows out of a motive foreign to the employment relationship, the necessary connection between the injury and the employment is not present and no compensation for the injury is proper.

The case of Walk v. S. C. Orbach Co., 393 P.2d 847 (Okl.1964), is factually similar to the case at bar. In Walk, the employee-claimant sustained injuries when her purse was "snatched" as she was walking to her car at the end of her working day. The car was in a parking lot maintained by her employer and she contended that her injuries were compensable. The Oklahoma Supreme Court denied recovery on the ground that for an injury to be compensable it must arise out of a risk which is in some manner peculiar to the employment. The court reasoned that no recovery should be permitted for an injury caused by a risk to which all persons are exposed. Thus, in the absence of any evidence that the nature of her employment increased the risk of injury or that the employer's parking lot increased the risk of injury (i. e., it was less safe than any other parking lot), the court held that the employee could not recover. This "increased-risk" test has been applied in decisions in other jurisdictions. See Bloom v. Industrial Comm., 61 Ill.2d 248, 335 N.E.2d 423 (1975); Malacarne v. City of Yonkers Parking Auth., 50 A.D.2d 678, 375 N.Y.S.2d 206 (1975); West v. Home Indemnity Co., 444 S.W.2d 786 (Tex.Civ.App.1969); O'Connor v. American Mutual Liab. Ins. Co., 87 So.2d 16 (La.App.1956).

From these cases, the controlling test of whether an injury "arises out of" the employment is whether the injury is a natural and probable consequence of the nature of the employment. A contributing proximate cause of the injury must be a risk to which the employee is exposed because of the nature of the employment. This risk must be such that it "might have been contemplated by a reasonable person familiar with the whole...