Watkins v. City of Wilmington

• Decision Date: 17 June 1976
• Docket Number: No. 90,90
• Citation: 225 S.E.2d 577,290 N.C. 276
• Parties: R. W. WATKINS, Claimant, v. CITY OF WILMINGTON, Employer, and The Travelers Insurance Company, Carrier, Defendants.
• Court: North Carolina Supreme Court

Page 577

225 S.E.2d 577

290 N.C. 276

R. W. WATKINS, Claimant, v. CITY OF WILMINGTON, Employer and The Travelers Insurance Company, Carrier, Defendants.

No. 90.

Supreme Court of North Carolina.

June 17, 1976.

Marshall, Williams, Gorham & Brawley by A. Dumay Gorham, Jr., Wilmington, for defendant appellants.

Addison Hewlett Jr., Wilmington, for plaintiff appellee.

MOORE, Justice.

On appeal, defendants assign as error the deputy commissioner's Findings of Fact Nos. 6, 7, 8 and 9 for the reason that they were not supported by competent evidence. In reviewing the findings found by a deputy commissioner or by an individual member of the Commission when acting as a hearing commissioner, the Commission may review, modify, adopt, or reject the findings of fact found by the hearing commissioner. The Commission is the fact-finding body under the Workmen's Compensation Act. Lee v. Henderson & Associates, 284 N.C. 126, 200 S.E.2d 32 (1973); Brewer v. Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962); G.S. 97--85. Here, the facts found by the deputy commissioner were adopted by the Commission as its own. Under G.S. 97--86, this award became conclusive and binding as to all questions of fact.

The only injury which is compensable under the Workmen's Compensation Act is an 'injury by accident arising out of and in the course of the employment.' G.S. 97--2(6). In interpreting this statute, our Court, in Conrad v. Foundry Company, 198 N.C. 723, 726, 153 S.E. 266, 269 (1930), stated:

'. . . 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. (Citations omitted.) There must be some causal relation between the employment and the injury; but if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected. (Citation omitted.) . . .' See Lee v. Henderson & Associates, supra.

Unquestionably, in present case, plaintiff's injury by accident occurred 'in the course of' his employment. It occurred on 18 October 1973 when, as required by the terms of his employment, he was on duty at the No. 3 Fire Station in Wilmington, North Carolina. As stated in 1 Larson, Workmen's Compensation Law § 24.00 (1972), '(w)hen an employee is required to live on the premises, either by his contract of employment or by the nature of the employment, and is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. . . .'

The determinative question in present case is whether plaintiff's injury arose 'out of' his employment. This Court in Robbins v. Nicholson, 281 N.C. 234, 238--39, 188 S.E.2d 350, 354 (1972), said:

'An accident occurring during the course of an employment . . . does not Ipso facto arise out of it. The term 'arising out of the employment' is not susceptible of any all-inclusive definition, but it is generally said that an injury arises out of the employment 'when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment.' Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643, 645 (1964). . . .' See also Lee v. Henderson & Associates, supra.

Together, the phrases 'arising out of' and 'in the course of' are used in an attempt to separate work-related injuries from nonwork-related injuries. Both tests are part and parcel of the single problem of determining the relationship between injury and employment.

'In practice, the 'course of employment' and 'arising out of employment' tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection, and therefore decificiencies in the strength of one factor are sometimes allowed to be made up by strength in the other.' 1 Larson, Workmen's Compensation Law § 29.00 (1972).

In Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955), this Court said:

'The Act 'should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation,' Johnson v. Hosiery Co., 199 N.C. 38, 153 S.E. 591, 593; but 'the rule of liberal construction cannot be employed to attribute to a provision of the act a meaning foreign to the plain and unmistakable words in which it is couched,' Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760, 762.'

Whether an accident arises out of the employment is a mixed question of fact and law, and the finding of the Commission is conclusive if supported by any competent evidence; otherwise, not. Lee v. Henderson & Associates, supra; Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963).

In the case of Lee v. Henderson & Associates, supra, plaintiff, a salesman employed by a cabinet manufacturer, worked in his employer's shop during his training period and obtained permission from his superiors to build a doghouse for his own use from scrap material during working hours when he had nothing else to do. Each of the employer's salesmen was required to work in the shop every third Saturday. While on duty in the shop one Saturday, plaintiff had cut some cabinet parts. During a lull, he resumed work on his uncompleted doghouse and injured himself with an electric saw. A practice or custom had been established by the employer allowing its employees to use its equipment for personal projects. This Court, speaking through Chief Justice Bobbitt, stated:

'The rule applicable when the employee has been directed, As part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time, has been well stated by the Court of Appeals of New York in Davis v. Newsweek Magazine, 305 N.Y. 20, 28, 110 N.E.2d 406, 409 (1953), as follows: 'In those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any Reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.' . . .'

In Stubblefield v. Construction Co., 277 N.C. 444, 177 S.E.2d 882 (1970), an employee of an electrical construction company was fatally injured on the premises of the Cherokee Brick Company. While awaiting the return of his foreman, the employee was standing in a room where several conveyor belts were in operation. The employee, while using his idle time to knock dust and pieces of brick from the conveyor rollers with a pair of pliers, came into contact with the conveyor and received fatal injuries. Compensation was awarded.

In Guest v. Iron & Metal Co., supra, the employee went to a filling station to use the free air facilities in order to repair a tire for his employer. While there, the filling station operator asked the employee to assist him in pushing an automobile off the filling station premises. The employee was injured when he was struck by another automobile while pushing the stranger's automobile. We held that the injuries to the employee arose 'out of and in the course of' his employment and were therefore compensable since the employee's acts were to an appreciable extent for the benefit of his employer. We further stated:

"Acts of an employee for the benefit of third persons...