Mion v. Atlantic Marble & Tile Co.

• Decision Date: 08 June 1940
• Docket Number: 547.
• Citation: 9 S.E.2d 501,217 N.C. 743
• Parties: MION et al. v. ATLANTIC MARBLE & TILE CO., Inc., et al.
• Court: North Carolina Supreme Court

9 S.E.2d 501

217 N.C. 743

MION et al. v. ATLANTIC MARBLE & TILE CO., Inc., et al.

No. 547.

Supreme Court of North Carolina

June 8, 1940

Proceeding under the North Carolina Workmen's Compensation ActP.L.1929, Chapter 120, as amended, for an award of compensation for death of Alfred Mion resulting from alleged injury by accident arising out of and in the course of his employment by defendant, Atlantic Marble & Tile Company Inc.

The hearing commissioner finds as facts pertinent to the appeal substantially these: (1) That the defendantAtlantic Marble & Tile Company is bound by the provisions of the North Carolina Workmen's Compensation Act, and has more than five employees, and that the average weekly wage of deceased Alfred Mion, was $27.50; (2) that on 1 August, 1938, the defendantUnited States Casualty Company was the compensation insurance carrier for the Atlantic Marble & Tile Company in the State of North Carolina, and the defendantAmerican Mutual Liability Insurance Company was such carrier in the State of South Carolina; (3) that on and for several months prior to 1 August, 1938, the deceased, Alfred Mion, a resident of the city of Charlotte, North Carolina, was employed by the Atlantic Marble & Tile Company in Charlotte under contract of employment for work to be performed in North Carolina, South Carolina, and any other state to which the employer might desire to send him, and pursuant thereto, had been working in North Carolina and elsewhere; (4) that on the morning of 1 August, 1938, the defendantAtlantic Marble & Tile Company, having a contract to do some work on a residence in South Carolina, known as the Johnson Home, sent the deceased, Alfred Mion, in company with five or six other fellow employees, in the company's conveyance to the Curtis B. Johnson residence in South Carolina, where the deceased worked that day, that defendantAtlantic Marble & Tile Company sent its conveyance to bring the employees back to Charlotte at quitting time in the evening of said day, but on account of the conveyance "not being very large and *** the employees would be somewhat cramped therein, the deceased, Alfred Mion, elected to ride back to Charlotte in the private car of a fellow employee, Albert Boldrini, and that after he had reached the city limits of Charlotte, the car, being driven at the time by Albert Boldrini, was wrecked and the deceased, Alfred Mion, received injuries resulting in his death"; (5) that the employment of deceased for the day did not terminate until he had reached the office of the Atlantic Marble & Tile Company in Charlotte; that he had not reached said office but was on his way thereto when he received the injury resulting in his death; and that such injury arose out of and in the course of his employment.

The hearing commissioner states that he thinks the findings of fact thus far are not controverted, but that the main controversy seems to be between the American Mutual Liability Insurance Company and the United States Casualty Company as to which of them shall be required to pay for the death of the deceased.With regard thereto, the hearing commissioner makes these further findings of fact: (6) That the American Mutual Liability Insurance Company was the insurance carrier for the Atlantic Marble & Tile Company in South Carolina, and on the job where the deceased worked during the day of 1 August, 1938, and that the United States Casualty Company did not receive any premium on any insurance on the Johnson job in South Carolina; (7) that the United States Casualty Company was the compensation insurance carrier for the Atlantic Marble & Tile Company in North Carolina on 1 August, 1938, and that the American Mutual Liability Insurance Company did not receive any premium for any insurance of the Atlantic Marble & Tile Company in North Carolina on said date.

Thereupon, regarding the question as to whether the Industrial Commission of South Carolina or that of North Carolina has jurisdiction, the hearing commissioner finds "as a fact and concludes as a matter of law under the facts in this case that the North Carolina Industrial Commission has jurisdiction".

From an award in accordance with these facts and conclusions of law, the defendantsAtlantic Marble & Tile Company and the United States Casualty Company petitioned for review by the full commission on the grounds: "(1) That the decision and award of the North Carolina Industrial Commission in this cause, dated April 24, 1939, and each and every finding of fact therein set forth, is unsupported by any competent evidence and is contrary to the weight of the whole evidence; (2) that the aforesaid award and each conclusion of law therein set forth is unsupported by any valid finding of fact based upon any competent evidence; and (3) that the aforesaid decision and award is erroneous in fact and in law."

After hearing on review the full commission, concurring in the opinion that North Carolina has jurisdiction and that the United States Casualty Company is the carrier, affirmed the findings of fact, conclusions of law and award of the hearing commissioner.

In due time the defendants, Atlantic Marble & Tile Company and United States Casualty Company, excepted to the award of the North Carolina Industrial Commission, and appealed to the Superior Court of Mecklenburg County, North Carolina, specifying particular exceptions, upon hearing of which the Judge presiding signed judgment affirming the award of the full commission.Said defendants appeal therefrom to the Supreme Court, and assign error.

Gover and Covington and Hugh L. Lobdell, all of Charlotte, for plaintiffsappellees.

Guthrie, Pierce & Blakeney, of Charlotte for employer appellant.

Helms & Mulliss, of Charlotte, for United States Casualty Co., defendantappellant.

J. Laurence Jones and James L. DeLaney, both of Charlotte, for defendantAmerican Mut. Liability Ins. Co., appellee.

WINBORNE Justice.

Upon the evidence appearing in the record on this appeal, the findings of fact upon which the award of the Industrial Commission as affirmed by judgment of the Superior Court is based, appears to be supported by the evidence except with respect to the average weekly wage.We consider the questions in order:--

1.Is there sufficient evidence to support the finding of fact that the injury to Alfred Mion, admittedly by accident and resulting in his death, arose out of and in the course of his employment by the Atlantic Marble & Tile Company within the meaning of the North Carolina Workmen's Compensation Act?P.L.1929, Chapter 120, as amended.We are of opinion and hold that there is.

As of the date of the happening of the accident, 1 August, 1938 the evidence tends to show, among others, these pertinent facts: The...