Teague v. Atlantic Co., 213 N.C. 546 (1938)

May 4, 1938 · Supreme Court of North Carolina

213 N.C. 546

S. P. TEAGUE et al. v. ATLANTIC COMPANY.

(Filed 4 May, 1938.)

1. Master and Servant § 40e — Evidence held to support finding that accident causing death did not arise out of the employment.

Evidence that a stairway was provided for the use of employees, that employees were forbidden to use an empty crate conveyor in going to and from the basement to the first floor, and that an employee, notwithstanding repeated warnings, used the crate conveyor in spite of its obvious danger, resulting in his fatal injury, is held to support the finding of the Industrial Commission that the accident causing death did not arise out of the employment.

2. Master and Servant § 55d—

Findings of fact of the Industrial Commission are conclusive on appeal when they are supported by competent evidence.

Sea well, J., took no part in the consideration or decision of this case.

Appeal from Armstrong, J., at Regular Civil Term, March, 1938, of MeckleNbukg. Affirmed.

Tbe findings of fact by tbe full N. C. Industrial Commission were:

“(1) Tbe parties to this cause are bound by tbe provisions of tbe Workmen’s Compensation Act. Tbe deceased employee bad never rejected tbe provisions of tbe law as far as tbe record is concerned. Tbe employer bas not rejected tbe provisions of tbe law, but, on tbe contrary, bas qualified as a self-insurer under tbe provisions of tbe law.

“(2) Sarse Eugene Teague, tbe deceased employee, left wholly dependent upon bim for support bis father and mother, S. P. and Lizzie Teague.

“(3) Tbe deceased, Sarse Eugene Teague, died as tbe result of an injury by accident four days after tbe happening of tbe said injury by accident.

“(4) Tbe employee Teague’s attempt to ride tbe empty crate conveyor from tbe basement to tbe first floor was obviously dangerous.

“(5) Tbe employee Teague’s attempt to ride tbe empty crate conveyor from tbe basement to tbe first floor was an attempt either for bis own personal convenience or for tbe thrill of performing a hazardous feat; to do an obviously dangerous thing.

“(6) Tbe empty crate conveyor was obviously designed, intended, and suitable for use only as a means of conveying empty crates from tbe basement to tbe first floor, and obviously was not designed, intended or suitable for use to convey a human being from tbe basement to tbe first floor.

“(7) On a few occasions when tbe deceased bad ridden tbe empty crate conveyor in tbe presence of bis foreman or other bossman, be bad been warned of tbe dangers, reprimanded for bis action and positively forbidden to do it again.

“(8) Tbe defendant provided, and tbe employees, including tbe deceased, ordinarily used, conveniently located stairs as a means of going back and forth between tbe basement and tbe first floor of tbe bottling department.

“(9) Tbe deceased, Teague, and other employees bad ridden this empty crate conveyor upon occasions. Such occasions were infrequent and more or less secret, however; that is, when tbe foreman or bossman were not present.

“(10) No duty of Teague’s, tbe deceased, required bim to ride this empty crate conveyor or contemplated that be should ride this empty crate conveyor.

“(11) The average weekly'wage of tbe deceased amounted to $24.75.

“(12) Tbe accident occurred on tbe premises of tbe employer during tbe working time of tbe deceased, that is, tbe accident occurred in tbe course of tbe employment. It did not, however, arise out of tbe employment.”

Tbe plaintiffs made numerous exceptions and assignments of error and appealed to tbe Supreme Court.

J. L. Hamme for plaintiffs.

Stewart & Bobbitt for defendant.

Per Curiam.

We tbink tbe judgment of tbe court below correct.

Tbe Full commission cited numerous authorities to sustain its award, and in tbe final conclusions of law stated: “Under tbe facts of this case we do not believe that Teague’s injury arose out of bis employment. In other words, we do not find a causal connection between tbe conditions under which bis work was required to be done and tbe resulting injury. His injury did not follow as a natural incident of tbe work. We conclude that there was no causal connection between tbe conditions under which tbe work was required to be performed and tbe resulting injury. Our law requires that an injury must occur both In tbe course of tbe employment’ and ‘arise out of tbe employment.’ Neither one alone is sufficient. Under tbe facts, tbe decisions, and sound reasoning, Teague’s injury certainly did not, in our opinion, arise out of bis employment. It appears that tbe unfortunate young, man lost bis life by stepping aside from tbe sphere of bis employment and voluntarily and in violation of bis employer’s orders, for bis own convenience or for the thrill of attempting a hazardous feat, attempted to ride on machinery installed and used for another purpose and obviously dangerous for tbe use be attempted to make of it rather than take tbe usual course of going from tbe basement to tbe first floor by way of tbe stairs provided and used for that purpose. Compensation cannot be awarded tbe dependents of tbe deceased for tbe above reasons. Compensation is therefore denied. Let an award issue accordingly.”

Tbe court below gave judgment as follows: “It is now ordered, adjudged and decreed: (1) That tbe award made by tbe North Carolina Industrial Commission, dated 9 February, 1938, this cause being designated before tbe said Commission by Docket No. 6941, be and is in all respects approved and affirmed. (2) That tbe findings of fact and conclusions of law set forth in tbe opinion of tbe North Carolina Industrial Commission, filed 4 February, 1938, be and are approved and affirmed. That tbe plaintiffs’ claim for compensation be and is denied.”

There was plenary competent evidence to sustain tbe findings of fact made by tbe Full Commission, which are controlling with us. We tbink tbe conclusions of law on tbe facts found are correct.

Tbe judgment of tbe court below is

Affirmed.

Sea well, J., took no part in tbe consideration or decision of this case.