*1 Lumberton. McGill v. odors on and noxious and offensive water produced polluted the basis of the upon to be ascertained tiffs’ land. Tbe damages property market between the fair and rеasonable value difference fair to so stream and the use the just began use, of such just beginning thereof after the reasonable market value at took and time assessed upon for it рroperty an interest appropriated damages are prospective pay. Past, considered. Knitting Company,
Reversed as to defendant Inc. Yance town of trial as to dеfendant Kernersville. New McGILL, McGILL, Employee; V. R. J. B. MRS. Mother of Deceased Employer ; LUMBERTON, BRIDGERS, Nephew, J. D. TOWN OF COMPANY, Carrier. MARYLAND CASUALTY 1939.) (Filed June, and Servant 40a— 1. Master § compensable employee to be it must result for tbе death of order from (j) (f). ch. Laws of sec. ment. Public and Servant 52b —Evidence raises 2. Master § resulted an accident. case that death from employee dependents Where a bullet such raises a from resulted only upon by accident, placing employer going the burden of with evidence to killed himself within exemption or forfeiture under Public Laws of and Servant 55d—§ 3. Master appears the Industrial Commission has found facts Where misapprehension of the the cause remanded will be under findings consideration of the in its the Commission legal light. J., Barnhill, Devin, J.I., concur
Schenck and Sinclair, Term, 1938, Dеcember Appeal ROBESON. under the North "Workmen’s Act Proceeding account of the death of Y. McGill, of Lumberton. of the town TERM, I/umbeeton. *2 portions fact, findings commissioner made The bearing wbicb substantially these: are Lumberton, the police chief town of Y. McGill, building. found on in the town a room in November, 1936, fired from by died as the result of wound in head inflicted the the him. murdered might owned “No that have by persons the been or The death of police have indicted apprehended.” nor arise out in of his did deceased of or the course employment, in suffer accident out of and arising the of his in his death. employment resulting the of law:
Upon findings these commissioner concluded a matter “Those under Workmen’s claiming compensation of the provisions Compensation Law arе to the prove satisfaction arising Commission an accident among things other can be in the course of the employment compensation awarded death results must that the death resulted an out of and in the course arising ment. After the claimants resolving in favor of case, opinion been sustained.” are that was denied therewith an award issued. accordance Full Commission, thereto, rendered, states: appeal opinion actual . ... is un- “The the death known. substantial amount of However, is a committed to the de- Then, adverting suicide.” Go., 556, C., E., 765, v. Fertilizer S. cision West “In the Full expressed continues: instant case, above, officer exposed peculiar the fact that recognizes Commission clear shooting evidence is danger; however, the which does nоt day time, deceased occurred tiffs’ an presumption Full he sustained Commission his employment found at a they place watchmen where are night as is held the assailant expected thоugh even the motive of be, where unknown.” affirms findings fact, conclusions Thereupon, hearing commissioner, award of and denies compen- and the of law was sustained Court. appeal Supеrior all of which sation, therewith, appeal From accordance judgment assign Court and error. Supreme & plaintiffs, and McLean Carlyle Stacy appellants. F. Ertel Varser, McIntyre & Henry defendants, G. Ginter W.
aрpellees. v. Lumberton. J. WiNBORNE, Is there error are con- judgment below? We strained hold that there is.
As used in the North Carolina “The Compensation Act, Workmen’s term 'death’ as a basis for compensation means “ from an injury,” and 'injury’ means out of and in the course of .” Public Laws 1929, (j) (f). Harden v. Furniture 199 N. C., White, 728; Plemmons 213 N. C., “The condition antecedent to occurrence of injury (1) by accident (2) arising out of and (3) the course of em ployment.” Conrad v. 198 N. Foundry White, Plemmons v. supra, cited.
The Workmen’s Compensation Act, sec. provides in that: part *3 “No compensation shall if payable be or death was ocсasioned . by the willful intention of the injure or kill him- self .” “the burden of shall him proof be who claims an exemption or forfeiture under this section.” Public Laws 1929, ch. 120. of violent
Evidence death, unexplained, suggests аccident rather than Co., ante, suicide. Warren v. Ins. 2 S. E., 2d, 17; Gorham v. Ins. Co., 214 N. C., 526,
While the burden of proof is upon those claiming compensation throughout to prove death of employee injury by accident of and in the course of his employment, when evidence violent death is shown, they are entitled at least to the benefit inference of accident from which, nothing appearing, else the Commis sion may find, but is not compelled find, the fact of death from injury by accident, constituent part of condition antecedent to compensation, injury by accident arising In other words, infеrence is sufficient to raise a ;prima case as to accident only. Then employer claims death of employee is by suicide, the places statute the burden on him to for ward with nеgativing the factual inference of death by accident. See Warren v. Ins. supra.
In the case in hand claimants are entitled to have the Industrial
Commission,
finding the facts, consider the
light of
these lеgal principles.
It appears that this has not been done.
Facts found under misapprehension of the law will be set
aside
the evidence should be considered in its
legal
light.
Fuller,
S. v.
Error remanded. about alive was last seen The deceased BaRNhill, p.m. 6:00 o’сlock about a.m., was found body 9:30 or 10:00 and his carried was usually was in a uniform and the When found he having from pistol in his holster. died His downward. nose, ranging root backward entered of the town of building room in hall city fоund a small which lock equipped room was with Yale Lumberton. The door to the and the door locked door when it closed, automatically The door locked. and locked and windows wеre closed and closed with a except key. could not from the opened outside about center room with feet The deceased was found in a ordinarily kept a chair therе was a revolver, near nailed at his lying box window on the east side of building, feet. I find with agree such that impossible ease are Co., ante, I authori do not consider Warren v. Ins. majority. violent means is
tative, point death except accident. In that case life insurance suing indemnity provisions policy, the double which included clause suicide. excluding out a case of death violent *4 оnly required make of means evidence sufficient As purpose. defendant to avoid under the exclusion clause the sought liability burden then shifted to it to show suicide. Here show more than death. He must to arose out of injury employment. to show that deceased died from a tending pistol While wound of shot is it raises no other prima accident, pre facie not and does relieve the оf the burden sumption plaintiffs of out of and in the injury that such arose course of his employmént. have failed do. This to
Nor I think that ch. Public Laws do is particular on the case. Plaintiffs first show that of suffered an and in the out course which caused death before any ment rests the defendant to and undertake to avoid liability plea that such injury inflicted. Until a willfully prima is liability case made facie IN THE SUPREME COURT. Lumbebton. or kill injure as to willful intention of to issue is
himself does not arise. Until of liability there to nothing from which the need undertake to itself or defendant exempt right forfeiture an award. Negligence analogous. cases are those put not to proof negligence until is first contributory estab- a prima lished of negligence, so, here, case the defendant is not put facie allegation injury resulting willfully that thе death was inflicted until there is first a prima case established tending facie suffered an his employment.
Even so, while the Commission use direct to that language effect, it is clear from this the Commission in fact placed the burden on defendant much more than heavily requires. last sentence that part Commis- hearing quoted sioner majority opinion, resolving every wit: “After doubt favor of the claimants case are of we the burden been sustained,” clearly indicates that the defendant was required to remove from the minds of to recover.
While all tends the evidence to show that the dеceased suffered an his death and that such re- ceived the course of his is, when daytime, —that he was ordinarily duty active tending no evidence to show —there that the accident arose out the WiM'ren burden did not shift to establish its affirmative defense until had first made out case. In this facie proceedings the burden does not shift until the claimants have first offered evidence at least establishеd a prima right of re- covery. The evidence the case cannot be construed establishing action unless hold that mere evidence that the deceased died from a wound is evidenсe not accidental but is also evidence death, that he suffered such injury by accident which arose out and in the his employment.
Under these circumstances the Commission was not required make specific to whether the finding injury was inflicted intentionally the deceased. JJ\,
ScheNCK concur in Deven,