Lee v. F. M. Henderson and Associates, 7310IC95
| Citation | 17 N.C.App. 475,195 S.E.2d 48 |
| Decision Date | 14 March 1973 |
| Docket Number | No. 7310IC95,7310IC95 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | Ralph E. LEE, Jr. v. F. M. HENDERSON & ASSOCIATES and Iowa Mutual Insurance Company. |
Manning, Fulton & Skinner by W. Gerald Thornton, Raleigh, for plaintiff appellant.
Teague, Johnson, Patterson, Dilthey & Clay by C. Woodrow Teague and Robert W. Sumner, Raleigh, for defendant appellees.
A claimant before the Industrial Commission must prove that the injury sustained was the result of an accident arising out of and in the course of employment. The phrase 'arising out of the employment' refers to the origin or cause of the accident and the phrase 'in the course of the employment' refers to the time, place and circumstances under which the injury occurred. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570. In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643. Whether the injury arises out of or in the course of employment is a mixed question of law and fact. Bryan v. Church, 267 N.C. 111, 147 S.E.2d 633; Enroughty v. Industries, Inc., 13 N.C.App. 400, 185 S.E.2d 597. The appellate court is bound by the nonjurisdictional findings of the Industrial Commission, if there is competent evidence to support such findings, but the appellate court is not bound by the conclusions of law made by the Commission. Enroughty v. Industries, Inc., Supra.
The Commission found that the three salesmen rotated their Saturday duties so that only one of them would be working in the shop on any given Saturday and each salesman worked his turn, it being plaintiff's turn on the date in question. Further, the findings show that plaintiff, at the request of the employer, went from the office to the shop and did whatever he saw that there was to be done without having been given any specific assignment. He also had previously obtained permission 'to work on (the) doghouse in the employer's shop during working hours when he had nothing else to do and to use 'scrap' material to build the doghouse.'
The Commission found that, at the time of the accident, claimant was a full-time salesman, that he had finished his training program and that he was performing an act personal to himself. These findings are not determinative of the issues.
Other findings of the Commission disclose that, whether called a 'salesman' or trainee, at the time and place of the accident one of the duties of his employment was to operate a power saw and that he had operated the saw to cut cabinet parts on the morning of the accident. Certainly one of the risks incidental to employment as a power saw operator is that of getting cut. The finding by the Commission that the particular piece of wood being sawed was destined for a doghouse instead of a cabinet does not alter the fact that claimant was injured while exposed to a risk of his employment in the operation of a power saw. These facts distinguish the case on appeal from Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680, where a night watchman, without permission or express prohibition, was washing his private automobile on company time. The employee was standing on the rear bumper of the car; his trousers caught on a bumper guard; when he tried to step off the bumper the trousers remained caught on the bumper guard and the employee fell to the ground on his left hip. The duties of his employment were to make six regular rounds of the premises, punch six key stations in his time clock on each round, to turn off lights which might have been left burning, to inspect various electric motors which might be operating, and to maintain general surveillance of the employer's premises. The court held that falling off of an automobile bumper while washing his personal automobile (without being expressly permitted to do so) was not a risk incident to his employment as a night watchman and that there was no causal relationship between his employment as a watchman and the injury he sustained.
Nor do we consider as determinative the Commission finding that the use of the saw at the time of the accident to cut a board for claimant's doghouse 'in no way furthered the employer's business.' In Stubblefield v. Construction Co., 277 N.C. 444, 177 S.E.2d 882, an employee of an electrical contractor was standing near some conveyor belts in a brick plant. He had no duties in connection with the operation of the brick plant or the conveyor belts. While awaiting the arrival of his foreman, the employee proceeded to knock dust and pieces of brick from the rollers of a conveyor belt. As he did so, his hand became entangled, he was pulled between the rollers and the belt and killed. Certainly the business of his employer, the electrical contractor, was not being furthered by an effort to clear a conveyor belt of the brick company. The Supreme Court held that there was a causal relationship between the accident and the employment. The employee was where he was supposed to be and was engaged in a duty required by his employment, namely, waiting for his foreman. In Bellamy v. Manufacturing Co., 200 N.C. 676, 158 S.E. 246, the spinning department of a cotton mill, located on the fifth floor, stopped work at 11:00...
To continue reading
Request your trial