Taylor v. Dixon

111 S.E.2d 181 (1959)

251 N.C. 304

Willie J. TAYLOR, (Employee) Plaintiff, v. J. D. DIXON, James Dixon, Jr., and Joe Eddie Dixon, (alleged Employers), Non-Insurers, Defendants.

No. 180.

Supreme Court of North Carolina.

November 25, 1959.

*185 Rodgers & Rodgers, Wilmington, for plaintiff appellee.

I. C. Wright, Wilmington, for defendant appellant.

WINBORNE, Chief Justice.

This is the sole question presented on this appeal: When a defendant in a proceeding under the North Carolina Workmen's Compensation Act sets up a specific defense, as in the present case, may the Industrial Commission fail or refuse to make specific findings of fact in respect thereto in the light of the evidence offered. The answer is "No".

Here the defendant contends plaintiff was employed to operate a chain saw and, though forbidden to do so, undertook to operate a tractor.

In this connection, "if", as stated in Larson's Workmen's Compensation Law Vol. 1, p. 463, "the unrelated job is positively forbidden, all connection with the claimant's own employment disappears, for he has stepped outside the boundaries defining, not his method of working, but the ultimate work for which he is employed." To like effect is Morrow v. State Highway Comm., 214 N.C. 835, 199 S.E. 265, where a painter on a bridge, after being forbidden to do so, undertook to recover a brush which had fallen in the river, was drowned. Recovery was not allowed.

Hence in the case in hand defendants are entitled to have the Industrial Commission, in finding the facts, consider the evidence in the light of these legal principles. It is apparent that this has not been done. Indeed, facts found under misapprehension of the law will be set aside on the theory that the evidence should be considered in its true legal light. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, and cases cited.

Therefore the case is remanded to the end that the North Carolina Industrial Commission, applying the legal principles here declared, may proceed to findings of fact and a determination of the claim in accordance with prescribed practice.

Error and remanded.

HIGGINS, J., not sitting.