Winberry v. Farley Stores, Inc.

• Decision Date: 25 January 1933
• Docket Number: 411.
• Citation: 167 S.E. 475,204 N.C. 79
• Parties: WINBERRY v. FARLEY STORES, Inc., et al.
• Court: North Carolina Supreme Court

167 S.E. 475

204 N.C. 79

WINBERRY v. FARLEY STORES, Inc., et al.

No. 411.

Supreme Court of North Carolina

January 25, 1933

Appeal from Superior Court, Guilford County; Clement, Judge.

Proceeding under the Workmen's Compensation Law by Laura Winberry claimant, for the death of her husband, George M. Winberry deceased, employee, opposed by Farley Stores, Inc., employer and the Independence Indemnity Company, insurance carrier. The Industrial Commission awarded compensation, but the Superior court reversed and set aside the award, and claimant appeals.

Reversed.

Industrial Commission's award is conclusive as to all questions of fact. Pub.Laws 1929, c. 120.

The hearing commissioner, J. Dewey Dorsett, found the facts and rendered his opinion and award as follows:

"This case was heard on September 2, 1930, at Greensboro, North Carolina. When the case was called for trial the defendants admitted that George M. Winberry was dead. They further admitted that at the time of his death he was a regular employee of James H. Farley Company at an average weekly wage of $19.26. They admitted that the death of the deceased, George M. Winberry, was caused by an accident suffered on May 15, 1930. The defendants denied liability on the sole ground that the accident suffered did not arise out of and in the course of the employment of the deceased with the Farley Stores, Incorporated.

"This case was heard before Dorsett, Commissioner, and an opinion was filed by the Commissioner on September 26, 1930. From the award rendered in the case the defendants appealed to the Superior Court of Guilford County. The presiding Judge, on the 11th day of April, 1931, signed an order setting forth certain reasons and concluding:

"'It is now, therefore, ordered that this cause be remanded to the North Carolina Industrial Commission to the end that its decision and award may be corrected, altered or amended accordingly.'

"From this order the defendants appealed to the Supreme Court and an appeal bond was fixed at seventy-five dollars. The defendants, before perfecting their appeal, abandoned it and the case is now before the Commission, having been formally certified back to the Industrial Commission by an assistant Clerk of the Superior Court, one C. S. Lambeth. The employer in this case is engaged in the clothing business. He sells clothing on the installment plan to customers and employs collectors whose duty it is to go out and locate and collect from their delinquent customers. The deceased was employed as one of the collectors for the defendant, Farley Stores, Incorporated. His widow, Mrs. George M. Winberry, is claiming compensation under the Workmen's Compensation Act of 1929 (Pub. Laws 1929, c. 120). She contends that her husband, while in the regular course of his employment, and while on a mission for the employer to collect delinquent accounts, was struck on the head by one of these delinquent customers, from which blow her husband died.

"The defendants admitted that George M. Winberry, deceased, at the time of his death, was a regular employee of Farley Stores, Incorporated, at an average weekly wage of $19.26, and further admitted that George M. Winberry met his death by accident on May 10, 1930. They were denying liability in the case on the sole ground that the accident suffered did not arise out of and in the course of the employment of the deceased.

"The evidence in the case is that the deceased had made several trips to the place where he suffered his accident to see two colored girls who had delinquent accounts with the Farley Stores, Incorporated. It is also in the record that the negro man who struck the deceased with a shovel owed an account to the Federal Clothing Company which company had been purchased by the Farley Stores, Incorporated, and that the deceased was also looking for the negro man who delivered the blow causing the death of the deceased. The negro man who struck the deceased the death blow was tried in the Superior Court of Guilford County and sentenced to serve a term of twenty years in the State Penitentiary. Some time after his confinement in the penitentiary, he suffered a heat stroke from which he died. The Commissioner does not, therefore have the benefit of the testimony of this negro man in the record as he died before this hearing was conducted.

"Under all of the evidence in the case the Commissioner makes the following findings of fact:

"1. The parties to this proceeding are bound by the provisions of the North Carolina Workmen's Compensation Act of 1929; the Independence Indemnity Company is the insurance carrier. The employer elected to be bound by the provisions of the Compensation Act; the deceased employee elected to be bound by the provisions of the Compensation Act. The insurance carrier is a company doing business in North Carolina and writing workmen's compensation insurance.

"2. On May 10, 1930, the deceased, George M. Winberry, was regularly employed by Farley Stores, Incorporated, of Greensboro, North Carolina, at an average weekly wage of $19.26.

"3. On May 10, 1930, during his regular hours of employment, and while performing a duty for which he was hired, the deceased suffered an injury by accident, the said injury resulting in his death. In other words, the accident arose out of and in the course of the employment.

"4. The deceased, at the time of his death, had dependent upon him for support his wife, Mrs. George M. Winberry. Mrs. Winberry was the only one dependent upon the deceased at the time of the accident and was wholly dependent upon the earnings of the deceased for her support. At the time of the accident she was living with her husband.

"5. The injury by accident was caused by an assault upon the deceased by one Archie Robinson. The said Archie Robinson was tried in the Superior Court of Guilford County and for this assault was sentenced to serve twenty years in the State Penitentiary. After being confined for a short while in the penitentiary Robinson suffered from heat prostration and died.

"6. From the evidence in this case we find as a fact that the deceased was on a mission for the employer at the time of the assault; that he had delinquent accounts from two girls who lived in the same house occupied by Archie Robinson, as well as a delinquent account to collect from Archie Robinson, and in attempting to collect these accounts the deceased did not wilfully intend to injure himself or to kill another. In other words, the injury sustained by the deceased resulting in his death was not the result of wilful intent on the part of the deceased to injure or kill himself or another.

"Upon the foregoing findings of fact are based the following conclusions of law:

"As stated in the statement of the case, an opinion was written and filed on September 26, 1930. The case was appealed to the Superior Court of Guilford County and Judge Shaw remanded the same to the Commission on the ground that the Commission had erroneously mixed its findings of fact and conclusions of law. We are of the opinion that the term 'arising out of and in the course of' is a mixed question of fact and law and that it is impossible to separate it. We are further of the opinion that it was necessary to find as a fact that the injury sustained by the deceased, resulting in his death, was not the result of wilful intent of the deceased to injure or kill himself or another because in the case of Conrad v. Cooke-Lewis Foundry Company, 198 N.C. 723, 153 S.E. 266, the Court, speaking through Justice Adams, remanded the case because such a finding had not been made.

"In this connection it is interesting to note that the Appellate Court of Indiana has laid down for the Industrial Commission of that State the findings of fact which should be made in every case. The Court says: 'In cases of this character, there are five facts which must be found as a legal basis for an award of compensation, viz.: (1) That claimant was an employee. (2) That he received an injury by accident. (3) That the accident arose out of and in the course of the employment. (4) The character and extent of such injury. (5) Claimant's average weekly wage.' Muncie Foundry & Machine Co. v. Thompson, 70 Ind.App. 157, 123 N.E. 196, 197.

"In every case which has been tried by this Commission we have found that it was necessary to find in each case that the accident did arise out of and in the course of the employment before compensation could be allowed. Several courts have held that the phrase is a mixed question of fact and law and that it is impossible to divide it. We are of the same opinion. In every case which has been before our Supreme Court that finding has been made and the Court, in every instance, has evidently thought it was a proper finding as no case has been remanded on account of such finding.

"The sole defense interposed by the defendants in this case is that the accident causing the death of the deceased did not arise

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