Perkins v. Sprott, 207 N.C. 462 (1934)

Dec. 12, 1934 · Supreme Court of North Carolina

207 N.C. 462

A. W. PERKINS, Employee, v. D. J. SPROTT, Trading as SPROTT BROTHERS FURNITURE COMPANY, Employer, and GREAT AMERICAN INDEMNITY COMPANY, Carrier.

(Filed 12 December, 1934.)

1. Master and Servant'F i—

Where all the facts are admitted and the Industrial Commission denies compensation on the facts as a matter of law, the Superior Court, on appeal, has jurisdiction to reverse the Industrial Commission and remand the cause.

2. Master and Servant F b — Injury in this case held to have resulted from accident arising out of employment.

Claimant was driving a truck in the course of his employment and, while passing a group of boys playing baseball, the baseball struck the windshield and a piece of glass from the windshield struck claimant in the eye, resulting in the injury: Held, the injury resulted from accident arising out of and in the course of the employment.

Appeal by defendants from Harding, J., at June Term, 1934, of Cabarrus.

Affirmed.

A claim, was filed by tfie plaintiff against the above defendants, employer and carrier, for compensation. A bearing before an individual Commissioner, J. Dewey Dorsett, was field in Concord, on 11 October, 1933. Tfie individual Commissioner found tfiat tfie injury arose out of and in tfie course of tfie plaintiff’s employment, and entered an award approving compensation. An appeal was taken to tfie full Commission on 8 November, 1933; tfie full Commission reversed tfie award of tfie bearing Commissioner and found tfiat tfie injury did not arise out of and in tfie course of tfie plaintiff’s employment, and entered an order denying compensation and dismissing the case. Tfie plaintiff appealed to tfie Superior Court. His Honor, Judge ¥m. F. Harding, found on tfie facts tfiat tfie accident did arise out of and in tfie course of the plaintiff’s employment, reversed tfie decision of tfie Commission, and directed tfiat tfie cause be remanded to tfie Industrial Commission. Tfie defendants excepted, assigned error, and appealed to tfie Supreme Court.

It is admitted tfiat on 27 June, 1933, A. W. Perkins, tfie plaintiff, was one of more than five employees of D. J. Sprott, trading as Sprott Brothers Furniture Company, in Concord, North. Carolina; tfiat tfie contract of employment was made under and was being performed subject to tfie provisions of tfie Consolidated Statutes of North Carolina, known as tfie “Workmen’s Compensation Act,” and was covered by a policy of insurance in full force and effect with tfie Great American Indemnity Company; tfiat tfie average weekly wages of tfie plaintiff were twelve dollars and fifty cents ($12.50), and tfiat as a result of tfie injury tfie plaintiff sustained a permanent loss of fifty-one per cent (51%) of tfie vision of fiis right eye.

H. 8. Williams for plaintiff.

Fred B. Helms and Frank F. Exum for defendants.

ClaResoN, J.

N. C. Code, 1931 (Michie), sec. 8081 (i) : “When used in this chapter, unless tfie context otherwise requires: (f) ‘Injury and personal injury’ shall mean only injury by accident arising out of and in tfie course of tfie employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.”

In Harden v. Furniture Company, 199 N. C., 733 (735), it is said: “While tfie phrase ‘in tfie course of’ refers to time, place, and circumstance, tfie words ‘out of’ relate to tfie origin or cause of the accident.” Goodwin v. Bright, 202 N. C., 481.

In Byrd v. Lumber Co., ante, 253 (255), it is said: “On plaintiff’s appeal from tfie award to tfie Superior Court, only questions of law involved in tfie proceeding and decided by tfie Industrial Commission could be considered. Tbis is also expressly so provided by statute. N. C. Code of 1931, see. 8081 (ppp). Tbe jurisdiction of tbe Superior Court is limited to- a consideration of questions of law only.”

In tbe present case all tbe facts are admitted, and tbe full Commission decided as a matter of law tbat plaintiff could not recover. An appeal was taken to tbe Superior Court and tbe ruling on tbis question of law made by tbe Industrial Commission was reversed. Tbe court below bad tbis power, and we tbink tbe decision correct.

Tbe testimony of plaintiff, in part, is as follows: “I was employed as a collector and deliveryman. On 27 June, 1933, I was driving my employer’s truck, returning on Highway No. 15, after having made a delivery at Kannapolis, to my employer’s place of business in Concord. As I was passing a group of boys playing baseball on a field near tbe highway a baseball bit and broke tbe windshield of tbe truck. A piece of glass from tbe windshield got in my eye. I did not return to work until 28 September, 1933. . . . Q. What I am getting at is tbis: Did anything bit you in tbe face except tbe glass in your eye? A. Nothing but tbe glass. Tbe ball, to my knowledge, didn’t touch me at all, only possibly fell in my lap. I don’t know where tbe ball was found. Q. Nothing bit you solidly, nothing but tbe glass, a few fragments of glass went in your eye, and that’s all ? A. Yes, sir.”

Tbe injury was: (1) By accident. (2) In tbe course of tbe employment and, we tbink, “arising out of.” Tbe injury to tbe plaintiff employee was tbe glass tbat bit him in tbe eye. Tbe baseball did not bit him.

In Whitley v. Highway Com., 201 N. C., 539, tbe injury was a stray shot from a hunter’s gun. In Bain v. Travora Mfg. Co., 203 N. C., 466, tbe injury was tbe stray bullet from one shooting at a sparrow.

We do not tbink tbat it is necessary from tbe view we take of tbis ease to consider “Street Hazard.” Tbe judgment of tbe court below is

Affirmed.