Annotate this Case

131 S.E.2d 308 (1963)

259 N.C. 724

William M. COLE, Executor of the Estate of Elizabeth M. Cole, William M. Cole, Individually, and Clarence E. Cole, Mae Cole Long, Jack B. Cole, and Edna Cole Brasher, Next of Kin of Elizabeth M. Cole, Deceased, v. GUILFORD COUNTY AND HARTFORD ACCIDENT & INDEMNITY COMPANY.

No. 600.

Supreme Court of North Carolina.

June 14, 1963.

*310 Falk, Carruthers & Roth, Greensboro, for plaintiff appellees.

Adams, Kleemeier, Hagan & Hannah, Greensboro, for defendant appellants.

SHARP, Justice.

Under the Workmen's Compensation Act a compensable death is one which results to an employee from an injury by accident arising out of and in the course of his employment. G.S. § 97-2(6); Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844; Plemmons v. White's Service, 213 N.C. 148, 195 S.E. 370.

In our view of this case, it is not necessary to decide the interesting question whether a juror serving during a term of the Superior Court is an employee of the county. Assuming arguendo that Mrs. Cole was such an employee, we are confronted by the query, did the fall which caused her death arise out of her service as a juror?

Whether an accident arises out of the employment is a mixed question of fact and law, and the finding of the Commission is conclusive if supported by any competent evidence; otherwise, not. Slade v. Willis Hosiery Mills, supra; Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 *311 S.E. 342. The words "out of," refer to the origin or cause of the accident and the words "in the course of," to the time, place and circumstances under which it occurred. Plemmons v. White's Service, supra. For an accident to arise out of the employment there must be some causal connection between the injury and the employment. When an injury cannot fairly be traced to the employment as a contributing proximate cause, or if it comes from a hazard to which the employee would have been equally exposed apart from the employment, or from the hazard common to others, it does not arise out of the employment. Lewter v. Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410. In such a situation the fact that the injury occurred on the employer's premises is immaterial. Poteete v. North State Pyrophyllite, 240 N.C. 561, 82 S.E.2d 693.

A fall itself is usually regarded as an accident. In Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20, the claimant, a topper in a hosiery mill, reached up toward a rack to get work to put on her machine. For some undisclosed reason she lost her balance and fell. In sustaining the award of compensation for the injury suffered in the fall, Barnhill, J., (later C. J.) said:

"The decisions in somewhat similar cases may be divided into two distinct groups * * * "The logic of these decisions is this: where the employee, while about his work, suffers an injury in the ordinary course of the employment, the cause of which is unexplained but which is a natural and probable result of a risk thereof, and the Commission finds from all the attendant facts and circumstances that the injury arose out of the employment, an award will be sustained. If, however, the cause is known and is independent of, unrelated to and apart from the employment, the result of a hazard to which others are equally exposed, compensation will not be allowed. Herein lies the distinction which is bottomed upon the rule of liberal construction."

In DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77, the cause of claimant's fall at the base of a flag pole was unexplained and recovery was allowed even though it was known that he was subject to mild epileptic seizures. However, in the instant case, the cause of Mrs. Cole's unfortunate fall is knownher leg simply gave way because of a physical infirmity, the nature of which we do not know. The fact that she was serving on the jury at the time had nothing to do with either the fall or its consequences. She did not fall out of an elevated jury box or tip over in a juror's chair. Jury service did not increase the danger of injury from the fall she sustained. There is nothing to suggest that she would not have fallen had she been leaving the courthouse after having listed her taxes or having attended to any other business there.

Mrs. Cole's fall was idiopathicthat is, one due to the mental or physical condition of the particular employee. 99 C.J.S. Workmen's Compensation § 257(1). The liability of an employer for such injuries was considered by this Court in Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173. In that case an employee subject to epileptic seizures, while driving his employer's truck, felt one approaching. He stopped the truck, opened the door, and laid down in the seat with his feet hanging out. During the seizure he fell and was injured. In reversing the Commission's award of compensation this Court held that the seizure was the sole cause of the injury which was unrelated to the employment. The Court said:

"(T)he better considered decisions adhere to the rule that where the accident and resultant injury arise out of both the idiopathic condition of the workman and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury." (Italics ours.)

*312 The opinion in Vause referred to 5 Schneider's Workmen's Compensation Text (Permanent Ed.), § 1376, where the author states: "(T)he question that usually determines whether the injury is compensable is, did the employee's working conditions contribute to the fall and consequent injury or was the accident solely due to the employee's idiopathic condition which might have caused him to fall in his home with the same injurious results? If it is the latter the employer is not liable, if the former he is liable." Quite clearly Mrs. Cole's fall was in the latter category. The claimant's fall in Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97, and in Allred v. Allred-Gardner, Inc., 253 N.C. 554, 117 S.E.2d 476, were in the former. See 40 N.C.Law Rev. 488.

The judgment of the lower court is


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