Pickard v. E.M. Holt Plaid Mills, Inc.

• Citation: 195 S.E. 28,213 N.C. 28
• Decision Date: 02 February 1938
• Docket Number: 745.
• Parties: PICKARD v. E. M. HOLT PLAID MILLS, Inc.
• Court: United States State Supreme Court of North Carolina

195 S.E. 28

213 N.C. 28

PICKARD v. E. M. HOLT PLAID MILLS, Inc.

No. 745.

Supreme Court of North Carolina

February 2, 1938

Appeal from Superior Court, Alamance County; Clawson L. Williams Judge.

Proceeding under the Workmen's Compensation Act by Jesse A. Pickard employee, opposed by the E. M. Holt Plaid Mills, Inc. employer and self-insurer. Judgment sustaining an award in favor of the employee, and the employer appeals.

Affirmed.

The Industrial Commission's findings of fact are conclusive on appeal to the superior court only when facts found are supported by evidence.

Jesse A. Pickard was employed as a weaver at the Belmont Plant of E. M. Holt Plaid Mills, Inc., and was employed on the night shift. The E. M. Holt Plaid Mills, Inc., maintains a confectionery wagon, run without profit, for the convenience of the employees, and such confectionery wagon is rolled from one department of the mill to another where employees purchased all kinds of confectioneries-milk, sandwiches, etc. If a profit is made, it is distributed to the employees at Christmastime.

At approximately 1 o'clock a. m., on January 21, 1936, the plaintiff purchased from the confectionery wagon a bottle of milk, left his place of work, and went to a window about twenty or twenty-five feet away, opened the window, and put the bottle of milk on the outside ledge in order to keep it cool until plaintiff desired to drink it. At approximately 25 minutes after 3 o'clock in the morning plaintiff again left his place of work and went to the window to get the bottle of milk; upon attempting to open the window plaintiff found that it had frozen tight. Plaintiff, being unable to raise the window alone, called a fellow employee from his place of work to assist him and, while attempting to open the window, plaintiff's hand slipped and his right arm struck and broke the windowpane. When plaintiff's arm struck and broke the windowpane, it was cut on the tip of the elbow, the cut being about an inch long.

Plaintiff was given first-aid treatment at the mill, later his arm became infected, requiring medical treatment, which treatment was first received on February 3, 1936. As a result of the injury to the plaintiff's right arm and its subsequent infection, plaintiff now suffers a 20 per cent. loss of use of that member.

The defendant, E. M. Holt Plaid Mills, Inc., self-insurer, denied liability for the injury, and the plaintiff filed with the North Carolina Industrial Commission a formal request for hearing, dated March 26, 1936, and formal notices of such hearing were duly issued on June 30, 1936, fixing July 14 1936, as the time, and the Court House at Graham, N. C., as the place, for the hearing, and at said time and place T. A Wilson, Commissioner, attended and the plaintiff, Jesse A. Pickard, appeared in person and was represented by Clarence Ross, attorney at law, Graham, N. C., and Messrs. T. D. Cooper and Emerson T. Sanders, attorneys at law, Burlington, N. C., attended, representing the defendant.

From the evidence on the hearing T. A. Wilson, Commissioner, found certain facts and rendered an award for the employee. Defendant appealed to the full commission, and the full commission made the following decision: "The claimant, at the time of the injury was employed in defendant's mill and purchased a bottle of milk from one of the company's employees, the company having one of its employees to pass through the mill with a cart selling various articles of food and confections for sale to the company employees. The employee passed through the mill at about one o'clock a. m., selling such articles and the claimant purchased a bottle of milk and not caring at that particular time to drink the milk, placed the same on the outer ledge of a window where it would keep cool until such time as he cared to drink it. Some two hours or more later when attempting to raise the window so as to reach out and get the bottle of milk claimant's elbow was pushed through the window thus injuring the tip of his elbow. Infection set in and at the present time claimant has 20% permanent loss of use of the arm on account of the injury. The Full Commission reviewed the evidence supporting the above facts and is of the opinion that there is no justifiable reason for disturbing the award of the hearing Commissioner. There is practically no controversy as to the facts, it being a matter of legal interpretation of the facts. The findings of fact, conclusions of law and award of Commissioner Wilson are approved and adopted as the findings of fact, conclusions of law and award of the Full Commission and are in all respects affirmed. Cost of appeal will be taxed against defendants. Buren Jurhey, Commissioner. Examined and approved, J. Dewey Dorsett, Chairman, T. A. Wilson, Commissioner."

The employer appealed to the superior court. The court below rendered the following judgment: "This cause coming on to be heard and being heard before the undersigned upon appeal from the award of the North Carolina Industrial Commission and upon the facts found and set out in the opinion and findings filed by the Commission, the Court being of the opinion that the conduct of the plaintiff was not such deviation from the course of his employment...