53 S.E.2d 668 | N.C. | 1949
This is a proceeding under the North Carolina Workmen's Compensation Act.
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 *430
the provisions of G.S.
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 co-workers 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 aside 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 percent 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, *431 suddenly addressed an obscene threat to Gannoway; that Gannoway thereupon threw the mortar into claimant's 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.
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. *432
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, 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.
Under G.S.
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. Aluminum Co.,
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, *433
Goldman Co.,
This brings us to the final inquiry on this phase of the controversy, i.e., whether the evidence supports the conclusion of the Industrial Commission that the injury arose out of the employment. An injury is one "arising out of the employment" within the purview of the Workmen's Compensation Act, when it occurs ill the course of the employment and is a natural or probable consequence or incident of it. Ashley v. Chevrolet Co.,
The defendants, Reid and Black, assert that the entire evidence engenders the single conclusion that Gannoway assaulted claimant "solely under the impulse of anger, or hatred, or revenge, or vindictiveness, not growing out of but entirely foreign to the employment," and that by reason thereof they cannot be held liable for compensation for the resulting injury. Holmes v. Brown Co., supra; Harden v. Furniture Co.,
The defendant Black asserts, however, that in any event the Superior Court properly vacated the award of the Industrial Commission as against him for the reason that all of the testimony disclosed and the Commission found that his personal employees numbered less than five. It is undoubtedly true as a general proposition that the only private employments covered by the Workmen's Compensation Act are those "in which five or more employees are regularly employed in the same business or establishment." G.S.
As amended by Chapter 766 of the 1945 Session Laws, this statute reads as follows: "Any principal contractor, intermediate contractor, or sub-contractor who shall sublet any contract for the performance of any work without requiring from such sub-contractor or obtaining from the Industrial Commission a certificate, issued by the Industrial Commission, stating that such sub-contractor has complied with section
Since it appeared from his own admissions and from other undisputed testimony on the hearing that Black undertook to construct the dwelling involved in this proceeding in the capacity of principal contractor and sublet the contract for the plastering of its ceilings and walls to Reid without requiring from Reid or obtaining from the Industrial Commission the prescribed certificate stating that Reid had complied with G.S.
The Workmen's Compensation Act makes specific provision for compensation "for the loss of an eye." G.S.
The court expressly adjudged that "even if this case is compensable there is no sufficient evidence to support a finding of fact, or conclusion of law, or an award allowing the claimant compensation for total blindness." It is to be noted that there was testimony on the hearing to the effect that the accident permanently destroyed ninety-five percent of the vision of each of the claimant's eyes. The defendants assert that this evidence is insufficient as a matter of law to establish a total loss of vision and cite Logan v. Johnson,
This decision lends color of support to the present contention of the defendants. In the Logan case, this Court corrected one of the erroneous *436
judgments rendered by the writer of this opinion while he was serving as a Superior Court judge and by reason thereof was still subject to what Chief Justice Bleckley of the Supreme Court of Georgia was pleased to call "the fallibility which is inherent in all courts except those of last resort." Broome v. Davis,
For the reasons given, the award of the Full Commission was proper in all respects, and the judgment of the Superior Court setting it aside is hereby
Reversed.
