Poteete v. North State Pyrophyllite Co.

• Decision Date: 09 July 1954
• Docket Number: No. 670,670
• Citation: Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (N.C. 1954)
• Court: North Carolina Supreme Court
• Parties: POTEETE, v. NORTH STATE PYROPHYLLITE CO. et al.

Page 693

82 S.E.2d 693

240 N.C. 561

POTEETE, v. NORTH STATE PYROPHYLLITE CO. et al.

No. 670

Supreme Court of North Carolina.

July 9, 1954

A. C. Davis, Greensboro, for plaintiff, appellee.

Jordan & Wright and Perry C. Henson, Greensboro, for defendants, appellants.

PARKER, Justice.

The correctness of the award is challenged on the ground that the evidence does not support the finding that claimant's injury arose out of and in the course of his employment. G.S.N.C. § 97-2(f); Lewter v. Abercrombie Enterprises, Inc., N.C. 82 S.E.2d 410; Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E.2d 93.

We have held in the following cases where an employee, while about his work, suffers an injury in the ordinary course of employment, the cause of which is not explained, but which is a natural and probable result of a risk thereof, and the Commission finds from the evidence that the injury arose out of the employment, an award will be sustained. Morgan v. Cleveland Cloth Mills, 207 N.C. 317, 177 S.E. 165; Maley v. Thomasville Furniture Co., 214 N.C. 589, 200 S.E. 438; Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20; DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77. 'There is surprisingly little contra authority.' Larson's Workmen's Compensation Law, Vol. 1, p. 100.

In the Morgan case the indications were he slipped on some ice, or stumbled over some lumber or a hand truck on an unlighted platform, and fell to the frozen ground. In the Maley case claimant was seen working in front of a running saw with a fresh bleeding place on his arm. In the Robbins case claimant, while reaching up in a rack in the work she was doing, fell. In the DeVine case the claimant was required to stand on a platform to lower a flag from a flag pole each day. He was found unconscious at the bottom of the flag pole with ropes of the flag pole tangled with his body.

It is settled law that 'Where an injury cannot fairly be traced to the employment as a contributing proximate cause * * * it does not arise out of the employment.' Bryan v. T. A. Loving Co., 222 N.C. 724, 24 S.E.2d 751, 754; Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342; Walker v. J. D. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89.

If claimant's injury did not arise out of and in the course of his employment, it is not compensable. Lewter v. Abercrombie Enterprises, Inc., supra; Berry v. Colonial Furniture Co., 232 N.C. 303, 60 S.E.2d 97. Both are necessary to justify an award. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680; Withers v. Black, 230 N.C. 428, 53 S.E.2d 668.

We said in Bell v. Dewey Brothers, Inc., supra [236 N.C. 280, 72 S.E.2d 682]: "Arising out of' means arising out of the work the employee is to do, or out of the service he is to perform. The risk must be incidental to the employment. Hunt v. State [201 N.C. 707, 161 S.E. 203]; Berry v. Colonial Furniture Co., [232 N.C. 303, 60 S.E.2d 97].'

Whether an accident arose out of the employment is a mixed question of law and fact. Matthews v. Carolina Standard Corp., supra; Plemmons v. White's Service, Inc., 213 N.C. 148, 195 S.E. 370.

The Commission found that claimant 'walked about 25 steps away from the chute and the crusher, and sat down on a wall * * *; that he sat down on the wall to rest a moment, and to see if the machinery started off all right, intending thereafter, when his services to the company had ended, and there was a lull which would not interfere with the work, to speak to John Moody about the $10.00; that John Moody went to the switchboard and started the machinery, and plaintiff was watching the belts to see that they were running * * *; that the machinery started and at that moment plaintiff experienced a sensation of 'turning blind' which is his last remembrance * * *.' The Commission further found that at the time claimant 'fell from the wall, he was still acting in his capacity as foreman, * * *, was rendering services to his employer in that capacity * * *.'

In our opinion, the evidence, most favorably considered for claimant, does not support such findings. Claimant returned to the plant twice on the evening he was injured, on personal business, to collect from Moody $10 Moody owed him. Claimant testified: 'We started working and after we got it unstopped, I went over to a shed and sat down on a wall over there. Up until that time, when I went over and sat down, I had not said anything to Moody about the money he owed me. We were busy fixing to start back up, and I hadn't mentioned it. I was waiting until he had a lull to speak to him about the money, waiting until he had a chance. You can feed the crusher a little faster than it will grind. I was waiting until we got to running, and he could stop and I could see him about it. Well, I sat down there. I was going to see him about the money, yes, but I wanted him to get everything running before I started talking to him. I wasn't going to interfere on company time. As soon as he got over his activity there and had a lull and it wouldn't interfere with his work, I was going to ask him about the money.' Claimant further testified: 'I was watching the belts to see that the belts was running. See, each belt was starting and I was...