Withers v. Black
| Decision Date | 25 May 1949 |
| Docket Number | 671 |
| Citation | 53 S.E.2d 668,230 N.C. 428 |
| Parties | WITHERS v. BLACK et al. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
This is a proceeding under the North Carolina Workmen's Compensation Act. G.S. s 97-1 et seq.
The matters stated in this paragraph are not in dispute. In September, 1947, J. M. Black, as principal contractor, was engaged in constructing a dwelling in Thomasville, North Carolina. He sublet the contract for plastering the ceilings and walls to the claimant's immediate employer, Arthur Reid, who kept five or more employees regularly employed in his business as a plastering contractor and who had not exempted himself from the provisions of the Workmen's Compensation Act, without requiring from Reid or obtaining from the Industrial Commission a certificate, issued by the Industrial Commission, stating that Reid had complied with the provisions of G.S. s 97-93 with respect to procuring insurance to secure payment of compensation to his employees or satisfying the Industrial Commission of his financial ability to pay compensation directly to them. Reid had not, in fact, complied with either of the two alternative requirements of this statute. Moreover, the principal contractor, Black, did not carry any workmen's compensation insurance. The claimant had worked for Reid during the seven or eight months next preceding September 8 1947. On that day he and six others were engaged in plastering the ceilings and walls of the dwelling in Thomasville under the personal supervision of their immediate employer, Reid, when Sonny Gannoway, one of the fellow employees, purposely threw a hod of mortar composed of sand and lime into the claimant's face, seriously injuring the claimant's eyes. The record does not disclose that the claimant and Gannoway had ever had any previous contacts with each other apart from their labor.
Both Reid and Black denied the validity of the claim filed against them by Withers for compensation for the injury occasioned by Gannoway's assault. The parties offered testimony conflicting in nature before Commissioner Buren Jurney, who presided at the initial hearing, with respect to the circumstances preceding and accompanying the attack upon the claimant.
When the evidence is viewed in a light favorable to claimant, it justifies the inferences that Gannoway, a comparative youth had been working with claimant and the other employees of Reid for two or three weeks to learn the plasterer's trade; that claimant and his experienced coworkers frequently charged Gannoway with being too slow in his work; that on the day of the assault the claimant and Gannoway were at work in a hallway in the dwelling at Thomasville, and claimant considered that Gannoway's position in the hallway impeded claimant's efforts to plaster a wall at which claimant was working; that claimant ordered Gannoway 'to get out of the way,' and Gannoway stepped asid so as not to interfere with claimant's work; that in consequence of this event an argument ensued between claimant and Gannoway in which claimant asserted 'that if he couldn't whip Sonny Gannoway that he would relieve him of his job' and in which Gannoway warned claimant not to 'let his mouth get him in trouble'; that Gannoway thereupon left the hallway and entered an adjacent bathroom, where he worked for approximately ten minutes; that Gannoway then returned to the hallway, where claimant was peaceably pursuing his labor, and without a word hurled the hod of mortar into the claimant's face; and that the lime in the mortar so injured claimant's eyes as to destroy permanently at least ninety-five per cent of his vision in each eye.
But when the testimony is construed adversely to claimant, it warrants the conclusions that the claimant, acting without apparent reason, suddenly addressed an obscene threat to Gannoway; that Gannoway thereupon threw the mortar into claiman't face on account of anger and fear aroused by such threat; and that there was nothing whatever in either the conduct or language of the parties suggesting any connection between the quarrel and the employment.
After hearing the evidence, Commissioner Jurney found that both the claimant and Reid were bound by the Workmen's Compensation Act. He made further findings of fact accordant with the testimony tending to support the claimant's case as set out above, concluded on the basis of such further findings that the claimant had suffered an injury by accident arising out of and in the course of his employment, and awarded the claimant compensation as against his immediate employer, Reid, for the total and permanent loss of his eyes. He dismissed the claim as against Black, however, on account of the fact 'that there is no evidence showing that J. M. Black had as many as five employees.'
The award of Commissioner Jurney was reviewed by the Full Commission on the appeal of Reid from the adjudication against himself, and on the appeal of the claimant from the exoneration of Black from liability. Upon its review, the Full Commission approved the findings of fact made by Commissioner Jurney, but disagreed with his ruling exonerating Black from liability to the claimant. After finding and concluding for itself on the basis of the testimony at the hearing 'that the claimant sustained an injury by accident arising out of and in the course of his employment with Arthur Reid September 8, 1947, when lime mortar was thrown into his face by a fellow employee causing total blindness,' the Full Commission found and adjudged that the principal contractor, Black, was liable to claimant after the exhaustion of the immediate employer, Reid, under G.S. s 97-19 because Black sublet the contract for the plastering to Reid without requiring from Reid or obtaining from the Industrial Commission a certificate that Black had complied with the provisions of G.S. s 97-93 and amended the award of Commissioner Jurney so as to hold the immediate employer, Reid, primarily liable and the principal contractor, Black, secondarily liable for compensation to claimant for total and permanent loss of his eyes. The Full Commission made an award accordingly, and Reid and Black appealed from the Full Commission to the Superior Court.
The Superior Court entered judgment setting aside the award of the Full Commission and exonerating both Reid and Black from all liability for compensation to claimant on the ground 'there was not sufficient or competent evidence upon which to base a finding that the injury arose out of and in the course of claimant's employment. ' The claimant excepted to this judgment, and appealed therefrom to this Court, assigning errors.
Schoch & Schoch, High Point, and Smith, Wharton, Sapp & Moore, Greensboro, for claimant, James Franklin Withers.
Gold, McAnally & Gold, High Point, for defendant Arthur Reid.
Carl C. Wilson, Thomasville, for defendant J. M. Black.
The Full Commission made findings of fact sufficient in form as to the occurrence of the threefold conditions antecedent to the right to compensation under the North Carolina Workmen's Compensation Act, G.S. s 97-1 et seq., namely: (1) That claimant suffered a personal injury by accident; (2) that such injury arose in the course of the employment; and (3) that such injury arose out of the employment. G.S. s 97-2(f); Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838; Taylor v. Wake Forest, 228 N.C. 346, 45 S.E.2d 387; Wilson v. Mooresville, 222 N.C. 283, 22 S.E.2d 907; McGill v. Lumberton, 215 N.C. 752, 3 S.E.2d 324; Pickard v. Plaid Mills, 213 N.C. 28, 195 S.E. 28; Holmes v. Brown Co., 207 N.C. 785, 178 S.E. 569; Winberry v. Farley Stores, Inc., 204 N.C. 79, 167 S.E. 475; Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266.
Under G.S. s 97-86, 'findings of fact by the Industrial Commission, on a claim properly constituted under the Workmen's Compensation Act, are conclusive on appeal, both in the superior court and in this Court, when supported by competent evidence. ' Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869, 870. This is so even in proceedings where the courts would reach different conclusions if they were clothed with fact-finding authority. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873. Thus, we encounter this paramount question at the threshold of this appeal: Was there competent evidence at the hearing supporting the finding of the Full Commission that the claimant suffered a personal injury by accident arising out of and in the course of his employment with his immediate employer, Reid, when his fellow employee, Gannoway, purposely injured him by throwing the hod of mortar into his face?
The testimony plainly warranted the conclusion that claimant sustained a personal injury by accident because an assault is an 'accident' within the meaning of the Workmen's Compensation Act 'when from the point of view of the workman who suffers from it it is unexpected and without design on his part, although intentionally caused by another. ' Schneider's Workmen's Compensation Text (Perm. Ed.), section 1560; Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320; Conrad v. Foundry Co., supra.
It has become axiomatic that under the Workmen's Compensation Act the words 'arising in the course of the employment' relate to the time, place, and circumstances under which an accidental injury occurs, and the term 'arising out of the employment' refers to the origin or cause of the accidental injury. Wilson v. Mooresville supra; Lockey v. Cohen, Goldman & Co., ...
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