Bell v. Dewey Bros.

Annotate this Case

72 S.E.2d 680 (1952)

236 N.C. 280

BELL v. DEWEY BROS., Inc. et al.

No. 241.

Supreme Court of North Carolina.

October 8, 1952.

*681 John S. Peacock and Scott B. Berkeley, Goldsboro, for plaintiff, appellee.

Broughton, Teague & Johnson, Raleigh, for defendants, appellants.

DEVIN, Chief Justice.

It is not controverted that the findings of fact made by the Industrial Commission in this case were supported by competent evidence, and that they are therefore binding upon the court on appeal.

From these findings it is made to appear that the claimant suffered injury at a time when he was on his employer's premises pursuant to his employment as a night watchman, and hence that his injury may be said to have arisen in the course of his employment, but the question presented for review by the appeal is whether the injury arose out of and as an incident to this employment. The Industrial Commission concluded it did not, but the judge was of contrary opinion. The defendants' appeal brings the question here.

As constituting the basis for compensation for injuries resulting from the hazards of industry the statute G.S. ยง 97-2(f) uses the words "injury by accident arising out of and in the course of the employment". These words have been often defined by the decisions of this Court. Hunt v. State, 201 N.C. 707, 161 S.E. 203; Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266; Hildebrand v. McDowell Furniture Co., 212 N.C. 100, 193 S.E. 294; Stallcup v. Carolina Wood Turning Co., 217 N.C. 302, 7 S.E.2d 550; Taylor v. Town of Wake Forest, 228 *682 N.C. 346, 45 S.E.2d 387; Withers v. Black, 230 N.C. 428, 53 S.E.2d 668; Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E.2d 93; Berry v. Colonial Furniture Co., 232 N.C. 303, 60 S.E.2d 97. The words "in the course of", as used in the statute, refer to the time, place and circumstances under which the accident occurred, while "out of" relates to its origin or cause.

"Arising out of" means arising out of the work the employee is to do, or out of the service he is to perform. The risk must be incidental to the employment. Hunt v. State, supra; Berry v. Colonial Furniture Co., supra.

In order to entitle the claimant to compensation the evidence must show that the injury by accident arose out of and in the course of his employment by the defendant. Both are necessary to justify an award of compensation under the Workmen's Compensation Act. Withers v. Black, supra.

Upon the facts found by the Industrial Commission, which are in accord with the evidence, we think the judge below was in error in his interpretation of the significance of those facts. The injury which the claimant sustained was not an accident which could be held to have resulted from a risk incident to his employment. Though he was on his employer's premises his injury occurred while he was engaged in washing his own automobile for his own purposes. While so doing he fell and suffered injury. He was engaged in an act in no way connected with the work he was employed to perform, and there appears no causal relationship between his employment as a watchman and the injury he sustained. Beavers v. Lily Mill & Power Co., 205 N.C. 34, 169 S.E. 825; Matthews v. Carolina Standard Corp., supra.

The court below was in error in holding on the facts found that claimant's injury arose out of and in the course of his employment.

Judgment reversed.