Lockey v. Cohen, Goldman & Co.
| Decision Date | 13 April 1938 |
| Docket Number | 305. |
| Citation | 196 S.E. 342,213 N.C. 356 |
| Parties | LOCKEY v. COHEN, GOLDMAN & CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; W. C. Harris, Judge.
Proceeding under the Workmen's Compensation Act by Joseph F. Lockey employee, opposed by Cohen, Goldman & Co., employer, and American Mutual Liability Insurance Company, insurance carrier. From a judgment adopting findings of the full Industrial Commission and reversing an award denying compensation, the employer and insurance carrier appeal.
Reversed.
This is a claim for compensation under the Workmen's Compensation Act, Code 1935, § 8081(h) et seq., filed by the plaintiff employee, against Cohen, Goldman & Co., employer, and American Mutual Liability Insurance Company, carrier. The individual commissioner allowed compensation. On appeal the full commission adopted the specific findings of fact by the individual commissioner, but reversed the finding by the individual commissioner, that "plaintiff's injury resulted from an accident arising out of and in the course of the employment of plaintiff," and denied compensation. On appeal to the superior court, the judge below entered judgment "that the findings of fact made by Commissioner Wilson and adopted by the Full Commission are adopted by this Court, and that thereupon the conclusions of law set forth in the opinion of the Commission filed 10 August, 1937, is set aside, and it is found as a matter of law that the injury to the plaintiff arose out of and in the course of plaintiff's employment." The judgment further provided for compensation, the costs of necessary treatment for said injury, the costs and an attorney's fee for plaintiff's counsel.
The findings of fact by the individual commissioner, which were adopted by the full commission and the court below, are as follows:
1. That the plaintiff and the defendant employer have accepted d the provisions of the compensation law; and that the American Mutual Liability Insurance Company is the insurance carrier.
2. That the plaintiff sustained an injury by accident arising out of and in the course of his regular employment December 19, 1936, when he slipped, fell, and fractured his left hip, and that as a result of said injury the plaintiff has been totally disabled since the date of the accident.
3. That the plaintiff's average weekly wage is $17.00.
There is some conflict in the evidence in this case as to the activities of the plaintiff immediately preceding his accident, and as to whether he had entered the cafe immediately prior to the accident or whether he had previously gone to the cafe, which was admitted by the plaintiff.
The Commission feels that it makes no substantial difference. The plaintiff was a faithful employee who worked for the best interest of the employer at hours required by the employer which were irregular, and even if he had gone to the cafe immediately prior to the accident, he had returned to his vehicle and was in the act of getting in it when he noticed the beckoning of the night watchman, and it was again in an effort to render service or what he thought was going to be service to his employer, that he slipped and fell.
The doctor testified that in his opinion the plaintiff would be totally disabled to May 15, 1937, and that there would be no permanent disability. However, the Commission is leaving both of these points open."
The undisputed evidence further shows that the plaintiff had no regular hours, but was subject to call at almost any hour and that he went to the plant on Sunday afternoon to hang up some canvas so that it might dry in the boiler room; that he finished this job, got in his car, drove through the alley out to the street, parked his car on the left side, went to the café, returned to his car, and was in the act of getting in it when the night watchman, who had come to the plant and had tried to get in the front door and could not due to the door being fastened from the inside, turned and beckoned or spoke to the plaintiff, who is almost deaf. In response to the beckoning of the night watchman, the plaintiff started to go to him, and in so doing he stepped on a fruit peeling lying on the sidewalk, slipped and fell, and fractured his left hip. The night watchman testified that when he went to the door and found it locked, ' It was further in evidence that the plaintiff did not have a key to this door. To the judgment entered, defendants excepted and appealed.
Finding of commission that an injury relied upon by claimant as basis for compensation did not arise out of and in the course of employment cannot be disturbed, unless under no view of the facts found such conclusion is warranted. Code 1935, § 8081(h) et seq.
Sapp & Sapp, of Greensboro, for appellants.
M. S. Dunn and R. E. Whitehurst, both of New Bern, for appellee.
The trial judge concluded that the facts found by the commission established as a matter of law the right of the plaintiff to recover. In this there was error. Even if it be conceded that the facts found will support the conclusion that the plaintiff's injury resulted...
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