Nissen v. City of Winston-Salem

• Citation: 175 S.E. 310,206 N.C. 888
• Decision Date: 11 July 1934
• Docket Number: 571.
• Parties: NISSEN v. CITY OF WINSTON-SALEM.
• Court: United States State Supreme Court of North Carolina

175 S.E. 310

206 N.C. 888

NISSEN v. CITY OF WINSTON-SALEM.

No. 571.

Supreme Court of North Carolina

July 11, 1934

Appeal from Superior Court, Forsyth County; Alley, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. Eva Carter Nissen, widow, to recover compensation for death of Harry E Nissen, employee, opposed by the City of Winston-Salem employer and self-insurer. From a judgment affirming a decision of the Industrial Commission awarding compensation the employer and self-insurer appeals.

Affirmed.

Supreme and superior courts are bound by findings of Industrial Commission, where there is any competent evidence to support findings; but where facts are admitted and only one inference could be reasonably drawn, question of law is presented.

Where both Industrial Commission and trial judge found upon competent evidence that fire chief who acted in capacities of both supervisor and workman was an employee, finding was conclusive on appeal.

On September 9, 1932, the board of aldermen of the city of Winston-Salem elected Harry E. Nissen chief of the fire department of said city, to serve for one year, and fixed his salary at $1,892 per annum. The ordinance of Winston-Salem then in force provided in substance that the board of aldermen in September of each year should elect a chief of the fire department, who "shall hold office for one year or until his successor is elected and qualified and shall receive such salary as may be fixed by the Board of Aldermen." It was further provided that: "The chief of the fire department shall be the commanding officer of the department under the supervision of the mayor and fire and building committee, and shall be responsible to the board of aldermen for its proper management. The property of the department shall be in his care and for its safety and proper assignment he shall be directly responsible to the Board of Aldermen. It shall be the duty of the chief to see that all rules, regulations and orders prescribed by the board of aldermen are promptly and faithfully respected and obeyed, and whenever any violation of the same is reported to him or comes under his personal observation, he shall promptly investigate the same and report the matter to the board." The chief had authority to suspend any member of the department from duty, "but shall immediately report such suspension, together with all the facts in the case to the board of aldermen for its consideration and action." It was the duty of the chief to respond to all fire alarms and "upon arrival at the scene of the fire at once assume command, taking every precaution for the protection of life and property. * * * He shall not absent himself from the city without the consent of the mayor or the fire and building committee." Certain other duties were imposed upon the chief of the fire department, such as making reports of all fires, furnishing certain information with respect thereto, and to inspect all buildings and premises in the city, to see that they are kept free from empty boxes, waste paper, ashes, and rubbish "which may be liable to cause or spread fire, and for the purpose of remedying any condition that may in his opinion be liable to cause or spread fire, and to enforce all the ordinances of the city relating to the prevention of fires."

On November 28, 1932, there was a fire alarm in Winston-Salem and the deceased, together with various units of the fire department, responded to the call. While the first fire was in progress another alarm was turned in from another part of the city. Thereupon the chief in company with another fireman started to the second fire, and on the way at the corner of Sixth and Cherry streets there was a collision between the automobile driven by the deceased and a bus, and as a result of such collision the deceased was killed.

A claim was filed with the Industrial Commission and a hearing held on June 16, 1933. Certain testimony was taken at the hearing and this testimony tended to show that Nissen had been chief of the fire department for more than fourteen years. He stayed at home part of the time and at the station part of the time, but was on duty practically all the time. Jenkins, who had been a member of the fire department for fourteen years, said with reference to the duties of the chief: "He had to make out his fire reports and looked after buying stuff and writing orders and stuff like that, and write requisitions and emergency orders and things like that. * * * When we have a fire we would go around over the building and try to find the cause of the fire and if we couldn't find it that night we would go back the next day and several times we would have to make several trips back. He did not have a stenographer. He wrote out his own reports. He had an alarm system in the house same as at the station. He attended fires at all times and was a good hand. He wore the same outfit to the fires as the men wore. At night he would wear boots and rubber pants. * * * He would help just the same as the rest of the boys and give orders what to do. * * * Lots of times me and him would go in and rush the furniture to the middle of the room and take these top holders and cover them up and I couldn't do this by myself. * * * Sometimes we were short of men at meal hours and men would take the hose and run off with them and maybe leave one man at the truck, and the driver can't connect up by himself and me and him has went and connected up with the hydrant. * * * I have seen him take an axe and bust open some doors and an axesaw and saw off locks. * * * Lots of times I have seen him chop holes in floors. He was a fellow that could stand lots of smoke and could go in like that. He wasn't a fellow that would say go do something. He would say, Let's go. * * * After the fire was over he would go around and hunt for kerosene rags or rags that would cause spontaneous combustion. * * * He was on duty all the time." Another fireman, testifying for claimant, said: "I have seen him take hold of hose and help get him to knock down doors and do things like that. * * * I have seen him take hold of the hose and help the men when they were in a strain." Another fireman, witness for plaintiff...