Wilson v. E.H. Clement Co.

• Decision Date: 01 January 1935
• Docket Number: 749.
• Citation: 177 S.E. 797,207 N.C. 541
• Parties: WILSON v. E. H. CLEMENT CO. et al.
• Court: North Carolina Supreme Court

177 S.E. 797

207 N.C. 541

WILSON v. E. H. CLEMENT CO. et al.

No. 749.

Supreme Court of North Carolina

January 1, 1935

Appeal from Superior Court, Orange County; Sinclair, Judge.

Proceeding under the Workmen's Compensation Act by Albert Wilson claimant, opposed by the E. H. Clement Company, employer, and the United States Casualty Company, insurance carrier. An award by the Industrial Commission having been affirmed, the employer and insurance carrier appeal.

Reversed.

Plaintiff suffered an injury by accident in the course of his employment on August 15, 1929. He employed counsel and filed a claim with the Industrial Commission on September 8, 1930. Thereupon a hearing was had before Commissioner Allen, who found that the injury to plaintiff arose out of and in the course of his employment, and that as a result thereof he had sustained a 20 per cent. permanent loss of use of his right leg. He also found "that no written report of the accident by the employee, employer or insurance carrier was filed with the Industrial Commission within one year from the date of the accident," and denied an award. There was an appeal to the full commission, and it found that no claim for compensation had been filed by any one within one year after the accident, and also that "the claimant was led to believe by officials of the defendant employer that he would be taken care of, and in relying upon their statements that he would be taken care of, prevented him from employing counsel and filing his claim within twelve months," and concluded that "the defendant ought not to be permitted to plead the statute and defeat the rights of the employee in this case, and we believe that the principle of equitable estoppel ought to be invoked and that the claimant ought to be awarded compensation."

Consequently an award was made, and the defendant appealed to the superior court.

The testimony of plaintiff appearing in the record upon which the doctrine of equitable estoppel was based in substantially as follows: Plaintiff was hurt on or about the middle of August and on Saturday following his injury he went down to the quarry and saw Mr. Dickinson, the superintendent. Plaintiff said: ""I said to Mr. Dickinson, 'I got to quit work, I can't walk.' He said: 'Can you carry water?' I said: 'I can't walk and couldn't carry water when I can't walk." D' Some time subsequent to the foregoing conversation the plaintiff went to see Mr. Dickinson again and narrates the conversation as follows: "I said: "Mr. Dickinson, I'm not able to work yet because I can't walk yet. * * * You have not paid me anything for getting hurt around here.' He said 'Well, I would pay you as much as $10.00 if you come back and go to work.' I told him I couldn't walk. That is the second time I told him. The third time I told him I couldn't walk and couldn't work, he said: 'You can have a job as long as you want it.' I told him I couldn't work. He said, 'You got on good clothes, you better go ahead and go to preaching.' I said: 'I was not called to preach.' I said: 'I have got to get an operation and it looks like you could give me a little compensation. I'm a man with six children.' * * * He told me my wages was going on, and I told him I had never received anything. * * * He said, "Your wages is going on, they come here,' and I told him I didn't get it. I never have received anything. * * * I saw Mr. Dickinson and depended on him as I did once before when I got hurt down there. He said, 'I will pay you when you come back and go to work." D'

The claimant was treated by Drs. Thompson, Coleman, and Markham prior to the time the notice of claim was filed.

The trial judge affirmed the award of the full commission, and the defendant appealed to the Supreme Court.

Thos. Creekmore and Murray Allen, both of Raleigh, for appellants.

Graham & Sawyer, of Hillsboro, and Thomas C. Carter, of Burlington, for appellee.

BROGDEN Justice.

Is the claimant entitled to receive compensation for the injury sustained on or about August 15, 1929?

Code 1931, §§ 8081 (dd), 8081 (ee), and 8081 (ff) prescribe the method of giving notice and of filing a claim with the Industrial Commission. Section 8081 (ff) declares in plain and unequivocal language that "the right to compensation * * * shall be forever barred unless a claim be filed with the Industrial Commission within one year after the accident," etc. It was found as a fact by the Industrial Commission that no claim was filed by any one within a year...