Taylor v. Twin City Club

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132 S.E.2d 865 (1963)

260 N.C. 435

Emily Coleman TAYLOR and Mary Moody Coleman, Sisters, Nettie Coleman, Widow of Andrew Coleman, Deceased, Employee, v. TWIN CITY CLUB, Employer, Indemnity Insurance Company of North America, Carrier.

No. 399.

Supreme Court of North Carolina.

November 6, 1963.

*867 W. Scott Buck, Winston-Salem, for plaintiffs.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Winston-Salem, for defendants.

MOORE, Justice.

Defendants make two assignments of error. The first is not brought forward and discussed in the brief, and it is therefore deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810; Virginia Electric & Power Co. v. Currie, Commissioner of Revenue, 254 N.C. 17, 118 S.E.2d 155. The second assignment of error presents only the question whether the facts found by the Commissioner are sufficient to support the award of compensation. Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467.

To be compensable under the Workmen's Compensation Act an injury must result from an accident arising out of and in the course of the employment. G.S. ยง 97-2(6). Claimant has the burden of showing such injury. Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760.

The deceased employee was injured by accident. To prove an accident in industrial injury cases it is not essential that there be evidence of any unusual or untoward condition or occurrence causing a fall which produces injury. The fall itself is the unusual, unforeseen occurrence which is the accident. Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20. A fall is usually regarded as an accident. Cole v. Guilford County, etc., Co., 259 N.C. 724, 727, 131 S.E.2d 308.

The accident occurred in the course of the employment. "In the course of" employment refers to the time, place and circumstances under which the injurious accident occurred. Deceased was on the premises of his employer where the duties of his employment required him to be; the accident occurred during his working hours; he was engaged in the performance of his duties or in activities incidental thereto DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77; Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320; Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266.

Defendants contend that there is no showing that the accident arose out of the employment. "Arising out of" employment relates to the origin or cause of the accident. Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342. Defendants insist that the cause of the fall was idiopathic, that the death of deceased was caused by "angina" and was not connected with the employment. There was competent evidence that the cause of death was "angina"; there was also competent evidence that death was caused by accidental injury, that it resulted from hemorrhage "secondary to the scalp laceration." The Industrial Commission accepted the latter theory and found as a fact that "deceased died as a direct result of the injury by accident giving rise hereto." Where the evidence before the Commission is such as to permit either one of two contrary findings, the determination of the Commission is conclusive on appeal to superior court and in this Court. DeVine v. Dave Steel Co., supra; Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97. The findings of the Commission as to the cause of death takes the instant case out of that category *868 of cases in which the cause of injury is idiopathic, or partially so. For cases falling within such category see: Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E.2d 476; Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173; Rewis v. New York Life Insurance Co., supra. In the instant case the immediate cause of the accident is unknown or undisclosed.

An injury is said to arise out of the employment when it occurs in the course of the employment and is a natural and probable consequence or incident of it, so that there is some causal relation between the accident and the performance of some service of the employment. Vause v. Vause Farm Equipment Co., supra. An injury arises out of the employment when it comes from the work the employee is to do, or out of the service he is to perform, or as a natural result of one of the risks of the employment; the injury must spring from the employment or have its origin therein. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838. There must be some causal relation between the employment and the injury; but if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected. Compensability is not dependent upon negligence or fault of the employer. Conrad v. Cook-Lewis Foundry Co., supra. On the other hand, workmen's compensation is not equivalent to general health and accident insurance. Vause v. Vause Farm Equipment Co., supra.

If a fall and the resultant injury arise solely from an idiopathic cause, or a cause independent of the employment, the injury is not compensable. Vause v. Vause Farm Equipment Co., supra. But the effects of a fall are compensable if the fall results from an idiopathic cause and the employment has placed the employee in a position which increases the dangerous effects of the fall. Allred v. Allred-Gardner, Inc., supra; Rewis v. New York Life Insurance Co., supra.

In the instant case the immediate cause of the fall is unknown. We have held that where an employee, while about his work, suffers an injury in the ordinary course of his employment, the cause of which is not explained, but which is a natural and probable result of a risk thereof, and the Commission finds from all of the attendant facts and circumstances that the injury arose out of the employment, an award will be sustained. Robbins v. Bossong Hosiery Mills, supra. In the Robbins case the employee, while reaching up to take some objects from a rack in the course of her employment, lost her balance and fell for some undisclosed reason. There was no evidence tending to show that the fall was caused by a hazard to which the employee was exposed apart from the employment. An award of compensation was upheld. Larson, commenting on the Robbins decision, says: "* * * (T)he North Carolina Supreme Court in effect said that when an accident occurred in the course of employment, and there is no affirmative evidence that it arose from a cause independent of the employment, an award would be sustained." Larson's Workmen's Compensation Law, Vol. 1, s. 10.31, p. 99. There is no material difference between the Robbins case and the one at bar. See also: DeVine v. Dave Steel Co., supra; Morgan v. Cleveland Cloth Mills, 207 N.C. 317, 177 S.E. 165. "* * * (M)ost courts confronted with the unexplained-fall problem have seen fit to award compensation." 1 Larson, s. 10.31, p. 97. "There is surprisingly little contra authority." ibid., p. 100.

This rule in unexplained-fall cases, which is applied in North Carolina and in most jurisdictions, was first declared in an English caseUpton v. Great Central Railway Company (1924) A.C. 302 (H.L.). In that case an employee fell on a railway platform in the course of a business errand. The platform was not slippery or defective in any way; the cause of the fall was completely unknown. Lord Atkinson said: *869 "Having been done in the course of the employment of deceased, and the accident having been caused by the doing of it even incautiously, it must, I think, be held that the accident arose out of the employment of the deceased." The decision of the House of Lords was unanimous.

It has been suggested that this result in unexplained-fall cases relieves claimants of the burden of proving causation. We do not agree. The facts found by the Commission in the instant case permit the inference that the fall had its origin in the employment. There is no finding that any force or condition independent of the employment caused or contributed to the accident. The facts found indicate that, at the time of the accident, the employee was within his orbit of duty on the business premises of the employer, he was engaged in the duties of his employment or some activity incident thereto, he was exposed to the risks inherent in his work environment and related to his employment, and the only active force involved was the employee's exertions in the performance of his duties.

The judgment below is

Affirmed

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