Plemmons v. White's Service, Inc.

• Decision Date: 02 March 1938
• Docket Number: 109.
• Citation: Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370 (N.C. 1938)
• Parties: PLEMMONS v. WHITE'S SERVICE, Inc., et al.
• Court: North Carolina Supreme Court

195 S.E. 370

213 N.C. 148

PLEMMONS v. WHITE'S SERVICE, Inc., et al.

No. 109.

Supreme Court of North Carolina

March 2, 1938

Appeal from Superior Court, Buncombe County; Felix E. Alley, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Elsie Plemmons for the death of Phoy Marcus Plemmons, her husband claimant, opposed by White's Service, Inc., employer, and the New Amsterdam Casualty Company, insurance carrier. The Industrial Commission awarded compensation, and, from a judgment of the superior court affirming the award, the employer and insurance carrier appeal.

Reversed.

Proceeding under the North Carolina Workmen's Compensation Act, Code 1935,§ 8081(h) et seq., for compensation on account of death of Phoy Marcus Plemmons.

The claim was heard first before Commissioner Dorsett of the North Carolina Industrial Commission, from whose decision claimant appealed to full commission. On such appeal the findings of fact and conclusions of law of the single commissioner were set aside and reversed. Pertinent to the question on this appeal, the full commission finds in substance the following facts: While deceased, Phoy Marcus Plemmons, was regularly employed by respondent, White's Service, Inc., on night duty at its filling station on the night of May 26, 1936, and while he was waiting on a customer at the station, a small dog ran through the station premises at the place where deceased was at work and bit him on the finger. The finger was dressed the next morning and within a week was entirely healed. Deceased continued to work until July 4, 1936, when he was taken seriously ill and died four days later of hydrophobia-"which was proximately caused by the dog bite on May 26th, which was an accident arising out of and in the course of the deceased's employment-that the filling station was exposed to the public, both humans and animals, and the deceased employee working there on night duty was exposed to a greater hazard than the public generally was and was more likely to be bitten by a dog under these conditions than the public in general."

Thereupon compensation was awarded, and, on appeal to the superior court, the award was affirmed.

Respondents appeal therefrom to the Supreme Court, and assign error.

J. M. Horner, Jr., of Asheville, for appellants.

J. Frazier Glenn, Jr., and J. G. Merrimon, both of Asheville, for appellee.

WINBORNE Justice.

A single question is determinative of this appeal: Did the death of Phoy M. Plemmons result from injury by accident arising out of and in the course of his employment? We think not, and so hold.

The North Carolina Workmen's Compensation Act provides that when used therein, unless the context otherwise requires, "the term 'death' as a basis for a right to compensation means only death resulting from an injury," and "injury" means an "injury by accident arising out of and in the course of the employment." Code 1935, § 8081 (i), subds. (j), and (f). Harden v. Thomasville Furniture Co., 199 N.C. 733, 155 S.E. 728.

"The condition antecedent to compensation is the occurrence of an (1) injury by accident (2) arising out of and (3) in the course of the employment." Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 268; Whitley v. Highway Comm., 201 N.C. 539, 160 S.E. 827; Beavers v. Lily Mill & Power Co., 205 N.C. 34, 169 S.E. 825.

Conceding, without deciding, that there is sufficient evidence to support the finding of fact that while in the course of his employment Phoy M. Plemmons was bitten by a dog running at large from which hydrophobia developed, resulting in his death, Did the dog bite arise "out of the employment"?

The words "out of" refer to the origin or cause of the accident, and the words "in the course of" to the time, place and circumstances under which it occurred. Conrad v. Cook-Lewis Foundry Co., supra; Harden v. Furniture Co. supra; Hunt v. State, 201 N.C. 707, 161 S.E. 203, 205; Ridout v. Rose's 5-10-25¢ Stores, 205 N.C. 423, 171...