Marsh v. Bennett College for Women, 212 N.C. 662 (1937)

Dec. 15, 1937 · Supreme Court of North Carolina

212 N.C. 662

CHESTER M. MARSH v. BENNETT COLLEGE FOR WOMEN and ÆTNA LIFE INSURANCE COMPANY.

(Filed 15 December, 1937.)

1. Master and Servant § 40e—

Award denying compensation for injuries suffered as result of tornado, upon finding that accident causing injury did not arise out of and in the course of the employment, affirmed on authority of Walker v. Wilkins, Inc., ante, 627.

2. Master and Servant § 55d—

Findings of fact of the Industrial Commission in proceedings for compensation are conclusive when supported by evidence.

Appeal by plaintiff from Armstrong, J., at May Term, 1937, of Gtjileoed.

Affirmed.

Tbis is a proceeding for compensation under tbe provisions of.the North Carolina Workmen’s Compensation Act.

Tbe proceeding was first beard by Commissioner Jurney, at Greensboro, N. C., on IS June, 1936.

At tbis hearing it was admitted for tbe purposes of tbe record that tbe plaintiff, as an employee, and tbe defendant Bennett College for Women, as an employer, were both subject to tbe provisions of tbe North Carolina Workmen’s Compensation Act at tbe date of plaintiff’s injury, to wit: 2 April, 1936, and that tbe defendant iEtna Life Insurance Company was tbe insurance carrier of tbe defendant employer.

Upon bis finding that on 2 April, 1936, tbe plaintiff suffered an injury by accident which arose out of and in tbe course' of bis employment, Commissioner Jurney made an award requiring tbe defendants to pay tbe plaintiff compensation for bis injury in accordance with tbe provisions of tbe North Carolina Workmen’s Compensation Act.

At tbe request of tbe defendants, tbe award of Commissioner Jurney was reviewed by tbe Full Commission, at Ealeigb, N. C., on 6 January, 1937.

Upon such review, tbe Full Commission found that tbe accident which caused tbe injury suffered by tbe plaintiff on 2 April, 1936, did not arise out of and in tbe course of bis employment, and accordingly made an award setting aside and vacating tbe award of Commissioner Jurney, and denying compensation to tbe plaintiff for bis injury.

On plaintiff’s appeal from tbe award of tbe Full Commission to tbe judge of tbe Superior Court of Guilford County, tbe award of tbe Full Commission was affirmed. Plaintiff appealed to tbe Supreme Court, assigning error in tbe judgment affirming tbe award of tbe Full Commission.

York & Boyd for plaintiff.

Sapp & Sapp and Norman Block for defendants.

CoNNOR, J.

Tbe facts in tbis case are substantially tbe same as those in Walker v. Wilkins, Inc., ante, 627.

Tbe question of law presented by tbis appeal is identical with tbe question of law presented by tbe appeal in that case.

There is no error in tbe judgment of tbe Superior Court in tbis case affirming tbe award of tbe North Carolina Industrial Commission denying plaintiff compensation, on its finding that bis injury was not by accident which arose out of and in tbe course of bis employment.

Tbe judgment is affirmed. See Walker v. Wilkins, Inc., ante, 627.

The briefs filed in this Court on tbe appeal in Walker v. Wilkins, Inc., supra, and in tbis appeal have been carefully considered. The numerous cases from other jurisdictions, cited in these briefs in support of the respective contentions of the appellant and of the appellee in each appeal, in which questions involving the liability of an employer to his employee, under Workmen’s Compensation Acts for the injury resulting from a tornado or other similar cause, are discussed and decided, have been carefully examined.

This court, however, has consistently recognized and • applied the statutory provision that findings of fact made by the North Carolina Industrial Commission in a proceeding for compensation under the provisions of the North Carolina Workmen’s Compensation Act, are conclusive upon the courts of this State, where such findings are supported by evidence, and has uniformly affirmed judgments of the Superior Courts affirming awards of the Industrial Commission in such cases. See Wimbish v. Detective Co., 202 N. C., 800, 164 S. E., 344. The opinion in that case by the late Justice Brogden has been frequently cited and uniformly approved. Accordingly, the judgment in this case is

Affirmed.