McGill v. Town of Lumberton

• Decision Date: 11 December 1940
• Docket Number: 678.
• Citation: 11 S.E.2d 873,218 N.C. 586
• Parties: McGILL et al. v. TOWN OF LUMBERTON et al.
• Court: North Carolina Supreme Court

11 S.E.2d 873

218 N.C. 586

McGILL et al. v. TOWN OF LUMBERTON et al.

No. 678.

Supreme Court of North Carolina

December 11, 1940

The findings of facts and conclusions of law are as follows:

"This case was originally heard before Commissioner Dorsett at Lumberton, N.C., September 16, 1937. An opinion was filed October 5, 1937, in which it was held that the plaintiffs' deceased did not sustain an injury by accident arising out of nor in the course of his regular employment. An award was duly issued in accordance with said opinion on October 11, 1937. The plaintiffs appealed in apt time to the Full Commission, and it was heard before the Full Commission at Raleigh, N. C., on December 7th, 1937. The opinion of the Full Commission was filed on February 12 1937, affirming the Findings of Fact, Conclusions of Law, and the Award of the Hearing Commissioner, and an award was duly and properly issued in accordance therewith. The plaintiffs took an appeal in apt time to the Superior Court where the matter was heard before His Honor, Judge Sinclair in the December Term, 1938, of Robeson County Superior Court. The Full Commission was affirmed and the case was appealed to the Supreme Court. The Supreme Court remanded the case to the Industrial Commission through the Superior Court 'to the end that the North Carolina Industrial Commission, applying the legal principles here declared, may proceed to findings of fact and a determination of the claim in accordance with prescribed practice.' [215 N.C. 752, 3 S.E.2d 324 326.]

"In the able opinion rendered by Winborne, J., it is said that 'While the burden of proof is upon those claiming compensation throughout to prove death of employee resulting from injury by accident arising out of and in the course of his employment, when evidence of violent death is shown, they are entitled at least to the benefit of the inference of accident from which, nothing else appearing, the Commission may find, but is not compelled to find, the fact of death resulting from injury by accident--a constituent part of the condition antecedent to compensation, injury by accident arising out of and in the course of employment. In other words, this inference is sufficient to raise a prima facie case as to accident only. Then if employer claims death of employee is by suicide, the statute places the burden on him to go forward with proof negativing the factual inference of death by accident.'

"The Full Commission has written to both parties and the defendants do not desire to further argue the case before the Full Commission. Therefore, the Full Commission is deciding this case without additional evidence or further oral argument.

"Section 13 (8081 (t) of the Compensation Law reads, in part: 'No compensation shall be payable if the injury or death was occasioned by the intoxication of the employee or by the wilful intention of the employee to injure or kill himself or another. *** The burden of proof shall be upon him who claims an exemption or forfeiture under this section.'

"The Full Commission has carefully reviewed the evidence in this case and after a further consideration of the evidence the Full Commission orders and directs that the original Findings of Fact of the Hearing Commissioner be affirmed except as to Findings Nos. 5, 7 and 8, and as to those it is ordered that they be vacated and set aside. The Commission further orders and directs that the Conclusions of Law and Award based thereon be vacated and set aside.

"In lieu of Findings 5, 7 and 8 (of the former opinion), the Full Commission makes the following Findings of Fact:

"1. That the death of the deceased, V. R. McGill, was the result of an injury and accident which did arise out of and in the course of his employment as Chief of Police of the Town of Lumberton.

"2. That said deceased, V. R. McGill, did not commit suicide.

"3. That said deceased, V. R. McGill, left his mother, Mrs. J. B McGill, as the only person wholly dependent upon him for support at the time of his injury and death.

"To sustain the position of the defendants that the deceased committed suicide we have evidence that the deceased was found dead in his office; that the office was not disarranged; that the discharged pistol was owned by the deceased; that the pistol was in such close proximity to the deceased's forehead that it caused powder burns, penetrating the skin; and that the pistol had a definite safety lock which would ordinarily prevent an accidental discharge of same.

"On the other side of the picture we have evidence that the deceased was a vigorous police officer, and the defendants have offered no evidence, either direct or by cross-examination, tending to establish a motive for suicide.

"The law placing the burden on the defendants to prove that the deceased did commit suicide, and the presumption being that he sustained an injury by accident, the Full Commission orders and directs that an award issue providing for the payment of compensation at the rate of $18.00 per week to the mother, Mrs. J. B. McGill, who was wholly dependent upon said deceased at the time of his injury and death; that said compensation shall be paid on the weekly installment basis not to exceed 350 weeks or $6,000; that since the compensation will total $6,000 no separate order will be issued as to the payment of burial expense.

"It is Ordered that the defendants pay the cost of the several hearings and trials. T. A. Wilson, Chairman. Examined and approved by: Buren Jurney, Commissioner."

In the second and final notice of formal award, is the following:

"The Full Commission directs that the original Findings of Fact in the opinion filed by then Commissioner J. Dewey Dorsett, on October 5th, 1937, be affirmed, except as to Findings Nos. 5 7 and 8, and as to these it is ordered that they be vacated and set aside; and it is further ordered and directed by the Full Commission that the Conclusions of Law and the Award dated October 11, 1937, based thereon, be vacated and set aside, and in lieu of Findings Nos. 5, 7 and 8, the Full Commission makes the following:

"Findings of Fact: That the death of the deceased, V. R. McGill, was the result of an injury by accident which arose out of and in the course of his employment as Chief of Police of the Town of Lumberton, defendant employer herein; that the said deceased did not commit suicide; and that the deceased, V. R. McGill, left his mother, Mrs. J. B. McGill, as the only person wholly dependent upon him for support at the time of his injury and death; and that the average weekly wage was in excess $30.00.

"Defendants shall pay to the said Mrs. J. B. McGill, mother of the deceased, V. R. McGill, compensation at the rate of $18.00 per week for a period of 322-2/9 weeks, or $6,000.00.

"Note Since the compensation will total $6,000.00 no separate...