Hunt v. State, Adjutant General's Dept.
| Decision Date | 25 November 1931 |
| Docket Number | 258. |
| Citation | 161 S.E. 203,201 N.C. 707 |
| Parties | HUNT v. STATE, ADJUTANT GENERAL'S DEPARTMENT. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Small, Judge.
Proceeding under Workmen's Compensation Act by W. Scott Hunt administrator of the estate of David Elder Hunt, deceased for personal injury and death of intestate, claimant, opposed by the State of North Carolina, Adjutant General's Department, self-insurer. From a judgment reversing an order of Industrial Commission denying compensation, defendant appeals.
Reversed.
The defendant appealed from a judgment of the superior court reversing an order of the Industrial Commission which denied compensation for personal injury and death by accident arising out of and in the course of the employment of the plaintiff's intestate as a member of the North Carolina National Guard. The Industrial Commission denied compensation upon the facts found by it, a concise statement of which is as follows: At the time of the injury the deceased was a member of the North Carolina National Guard and was serving a second enlistment in the First Battalion Headquarters Company of the North Carolina National Guard located at Oxford. E. E Fuller was the commanding officer of the company. Pursuant to orders from the military authorities of the state and the United States, the company was ordered to go to Morehead City on July 6, 1930, for military services connected with the annual encampment of the North Carolina National Guard. Transportation was furnished for the company by the War Department of the United States on trains of the Seaboard Air Line and the Norfolk-Southern Railway Company. It had been the custom of the military authorities to authorize and direct designated members of the military units to proceed to the place of the annual encampment of the National Guard in advance of the unit or company, or subsequently thereto, in such way as the military authorities authorized or permitted. In accordance with this custom, the commanding officer gave the deceased a leave of absence during the first week of the encampment and ordered him to report for duty at Camp Glenn on July 13, 1930, at 6 a. m. At that time the commanding officer knew that the deceased was in the employ of druggists in Oxford; that his duties required him to remain there in his work until 11 p. m. on July 12, 1930; and had cause to believe that he would travel to the Camp at Morehead City by automobile. The deceased left Oxford at 11:15 p. m. July 12 and proceeded on the nearest and most direct route to Morehead City. At 1:30 a. m. between Raleigh and Clayton on State Highway No. 10 he suffered an injury by accident in a collision between his automobile and another automobile on the highway. As a result of the injury death followed. The deceased was nineteen years of age and left no one either wholly or partially dependent on his earnings for support. W. Scott Hunt is his administrator.
The average weekly earnings of deceased at the time of his death were $18.88 in civil employment. Under the terms of his enlistment he was required to obey the orders of his commanding officer and to leave his home in Oxford and to proceed to Camp Glenn in time to report by 6 o'clock a. m. on July 13, 1930. Transportation was furnished by the deceased and not by the employer. The injury which resulted in death occurred during the period of employment of the deceased, who was entitled to receive compensation from the time he left his home in Oxford and who would have received pay for that time if he had lived.
The Industrial Commission affirmed the award of Commissioner Wilson denying the claimant compensation, holding that the accident occurred during the course of the employment of the deceased but that it did not arise out of the employment; that had transportation been furnished by the employer the claimant would be entitled to compensation, but that the evidence is to the effect that the cost of transportation from Oxford to Morehead City would not have been paid by the employer but was a private matter with the National Guardsman himself.
From this order of the Industrial Commission the claimant appealed to the superior court, which reversed the order of the commission, the judge holding that the claimant was entitled to compensation. From the judgment of the superior court the defendant appealed, assigning error.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell and Walter D. Siler, Asst. Attys. Gen., for the State.
Royster & Royster and Parham & Lassiter, all of Oxford, for appellee.
By the terms of the North Carolina Workmen's Compensation Act, compensation may be paid to an employee, or in case of his death to his dependents or legal representatives, for personal injury by accident arising out of and in the course of his employment. N.C. Code 1931, § 8081(i), subds. (b) (f) (j) (k). We have said in previous decisions that it is not easy to give the phrase "out of and in the course of the employment" an accurate definition within which all facts calling for an application of the provisions of the act may be embraced. Obviously the terms are not synonymous; probably the one was meant to qualify the other.
The Industrial Commission was of opinion that the deceased at the time of the accident was in the course of his employment, drawing its conclusion from evidence that the deceased, had he lived, would have received pay from the time he left Oxford. The superior court adjudged that the injury arose out of and in the course of the employment.
The words "out of," as used in the act, refer to the origin or cause of the accident. Whether the accident arose out of the employment is usually a mixed question of fact and law; but if the facts are found or are not in dispute and the case does not depend upon inferences of fact to be drawn from the facts admitted, the question is not one of fact but of law. Conrad v. Foundry Co., 198 N.C. 723, 153 S.E. 266; Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728; Willis' Workmen's Compensation, 16.
The accident occurred on a public highway between 1 and 2 o'clock at night...
To continue reading
Request your trial