Smith v. City of Gastonia

Citation5 S.E.2d 540,216 N.C. 517
Decision Date22 November 1939
Docket Number522.
CourtUnited States State Supreme Court of North Carolina

This was a proceeding before the North Carolina Industrial Commission upon a claim of Mrs. Laura R. Smith v. the City of Gastonia, the Gastonia Athletic Association, Employers, and American Employers' Insurance Company, Carrier. During the proceeding the claim as to Gastonia Athletic Association was disallowed for want of any evidence of liability, and as to this there was no appeal. The present controversy concerns the liability of the City of Gastonia and the American Employers' Insurance Company only. The cause was heard by Commissioner Dorsett, and upon appeal by the defendants from adverse findings of fact and conclusions of law by the hearing Commissioner the matter was heard by the full Commission, and the opinion was filed and award made on October 24, 1938. From this there was an appeal to the Superior Court, where the award was affirmed, and, thereupon, the defendants appealed to this Court.

Leaving out the more formal part of the evidence, as to which there is no controversy, the facts disclosed are substantially as follows:

At the time of his injury and death John Hazel Smith was employed by the City of Gastonia in the capacity of motorcycle policeman. Certain hours were prescribed during which the policeman was said to be "on duty", but it was also one of the duties of his employment to arrest at any time violators of the law or to prevent infractions of peace within the city limits and he was also at all times "on call". At the particular time his "on duty" hours, in the sense above named, had expired, and he was riding home on the motorcycle furnished him by the city.

As to this, the evidence tended to show that at the time he was sworn in he was provided with a motorcycle and other equipment necessary to the discharge of his duties, and as to the motorcycle he was given the entire responsibility and care for it, and it was understood that he might keep it at the Town Hall or at his home, according to his preference. He had been keeping it in the garage at home. Smith used the motorcycle in the discharge of his duties as a policeman within the city limits, and used it as a means of transportation to his home when the hours for his more exacting duties had elapsed, and this was through the authorization of the City Manager at the time of his employment.

Thus returning to his home on the motorcycle he collided with an approaching car, which, as the evidence discloses, was driven carelessly and recklessly, and he was killed.

Upon this evidence the full Commission found as fact that the City of Gastonia furnished the deceased with transportation to and from his home and police headquarters in the form of a motorcycle, which was used by the deceased while performing his regular duties as an officer, and that on September 4 1937, "said Smith sustained an injury by accident arising out of and in the course of his regular employment", which resulted in his death on September 5 1937.

Upon this evidence and these findings of fact (and others not in controversy), the court sustained the conclusions of law reached by the Industrial Commission and affirmed the...

To continue reading

Request your trial
8 cases
  • McLamb v. Beasley
    • United States
    • United States State Supreme Court of North Carolina
    • 30 Octubre 1940
    ...N.C. 189, 165 S.E. 356; Dickerson v. Reynolds, 205 N.C. 770, 172 S.E. 402; Barrow v. Keel, 213 N.C. 373, 196 S.E. 366; Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540, holding that scope of employment was for the Evidence showing plaintiff was injured by negligent operation of truck, operated......
  • Archie v. Greene Bros. Lumber Co.
    • United States
    • United States State Supreme Court of North Carolina
    • 8 Enero 1943
    ...676, 158 S.E. 246; Edwards v. Loving Co., 203 N.C. 189, 165 S.E. 356; Gordon v. Chair Co., 205 N.C. 739, 177 S.E. 485; Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540; v. Marble & Tile Co., Inc., 217 N.C. 743, 9 S.E.2d 501. The only provision made by the statute with regard to an injury cause......
  • Bryan v. T.A. Loving Co. & Associates
    • United States
    • United States State Supreme Court of North Carolina
    • 24 Marzo 1943
    ...S.E. 147; Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604; Bray v. Weatherly & Co., 203 N.C. 160, 165 S.E. 332; Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540; Lassiter v. Tel. Co., 215 N.C. 227, 1 S.E.2d Rourke's Case, 237 Mass. 360, 129 N.E. 603, 13 A.L.R. 546; Podgorski v. Kerwin,......
  • Enroughty v. Black Industries, Inc., 7171C708
    • United States
    • Court of Appeal of North Carolina (US)
    • 12 Enero 1972
    ...this case were proper. See Hardy v. Small, Supra; Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962); Smith v. Gastonia, 216 N.C. 517, 5 S.E.2d 540 (1939); Edwards v. T. A. Loving Co., 203 N.C. 189, 165 S.E. 356 (1932); Dependents of Phifer v. Foremost Dairy, 200 N.C. 65, 15......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT