Walker v. J.D. Wilkins, Inc.

• Decision Date: 15 December 1937
• Docket Number: 668.
• Citation: 194 S.E. 89,212 N.C. 627
• Parties: WALKER v. J. D. WILKINS, Inc., et al.
• Court: North Carolina Supreme Court

194 S.E. 89

212 N.C. 627

WALKER v. J. D. WILKINS, Inc., et al.

No. 668.

Supreme Court of North Carolina

December 15, 1937

Appeal from Superior Court, Guilford County; Frank M. Armstrong Judge.

Proceeding under the Workmen's Compensation Act by Charlie Walker claimant, opposed by J. D. Wilkins, Inc., employer, and the Lumbermen's Mutual Casualty Company, insurer. From a judgment of the superior court affirming an order of the Industrial Commission denying compensation, claimant appeals.

Affirmed.

The proceeding was first heard by Commissioner Jurney at Greensboro, N. C., on June 15, 1936.

At this hearing it was admitted for the purposes of the record that the plaintiff, as an employee, and the defendant J. D Wilkins, Inc., as an employer, were both subject to the provisions of the North Carolina Workmen's Compensation Act, at the date of plaintiff's injury, to-wit, April 2 1936, and that the defendant Lumbermen's Mutual Casualty Company was at said date the insurance carrier for the defendant employer.

Upon his finding that on April 2, 1936, the plaintiff suffered an injury by accident which arose out of and in the course of his employment, Commissioner Jurney made an award, requiring the defendants to pay the plaintiff compensation for his injury in accordance with the provisions of the North Carolina Workmen's Compensation Act.

At the request of the defendants, the award of Commissioner Jurney was reviewed by the full commission at Raleigh, N. C., on January 6, 1937.

Upon such review, the full commission found that the injury which was suffered by the plaintiff on April 2, 1936, was not the result of an accident which arose out of and in the course of his employment, and accordingly made an award setting aside and vacating the award of Commissioner Jurney and denying compensation to the plaintiff for his injury.

On plaintiff's appeal from the award of the full commission to the judge of the superior court of Guilford county, the award of the full commission was affirmed. Plaintiff appealed to the Supreme Court, assigning error in the judgment affirming the award of the full commission.

York & Boyd, of Greensboro, for appellant.

Henderson & Henderson, of Greensboro, for appellees.

CONNOR Justice.

About 7:12 p. m., on April 2, 1936, while the plaintiff, Charlie Walker, was at work at the plant of his employer, the defendant J. D. Wilkins, Inc., which is located on West Lee street in the city of Greensboro, N. C., a tornado suddenly and with terrific force struck the plant and partially demolished the building in which the plaintiff was at work. The tornado lasted not to exceed five minutes, and caused damages to many buildings which were located in the vicinity of the building in which the plaintiff was at work. Many persons who were in the path of the tornado were injured. Several died as the result of their injuries. The plaintiff while he was in the building suffered an injury.

In support of his contention that his injury is compensable under the provisions of the North Carolina Workmen's Compensation Act, for that said injury was by accident which arose out of and in the course of his employment (chapter 120, Public Laws of North Carolina 1929, § 2(f), N.C. Code of 1935,§ 8081(i), subd. (f), at the hearing of this proceeding by Commissioner Jurney, the plaintiff offered evidence as follows:

Charlie Walker, the plaintiff, testified as follows:

"My name is Charlie Walker. I live in Greensboro, N.C. I am employed by the defendant, J. D. Wilkins, Inc., and have been so employed for eight years. I do ornamental rail work, and at times operate a milling machine.

I was at work at the Wilkins plant about 7 o'clock P. M., on 2 April, 1936. My brother, J. L. Walker, and my foreman R. P. Strunks, were also at work at the plant. The tornado struck the building in which we were at work. Part of the roof and the walls of the building fell down. Timbers flew about in the building. Something struck me and knocked me down. I do not know what struck me. It was a part of the building. I fell to the floor in some water from the sprinkler system. I was rescued within a few minutes by my brother and was taken by him to the hospital. My right leg was injured, about an inch and a half above the ankle. I was struck by something that knocked me down.

The building in which I was at work is located on West Lee Street. The building was constructed of steel and wood and brick. The walls were brick. It was a substantial...