Bolling v. Belk-White Co., 228 N.C. 749 (1948)

April 7, 1948 · Supreme Court of North Carolina

228 N.C. 749

MARTHA H. BOLLING (MRS. LOUIS H. CROWELL), et al., v. BELK-WHITE CO., et al.

(Filed 7 April, 1948.)

1. Master and Servant § 40c—

Evidence tending to show that deceased came to his death as a result of'a pistol wound while at a place where he had a right to be in the course of his employment, without evidence that he was authorized to keep a pistol or use it in the business of the employer, is insufficient to support an award of compensation on the ground that in the absence of a showing of suicide it will be presumed that the death resulted from ah accident, since, even so, there is neither presumption nor evidence to support the necessary basis for compensation that the accident arose out of the employment.

3. Master and Servant § 40a—

An injury to an employee must result from an accident arising out of and in the course of employment in order to be compensable under the Workmen’s Compensation Act.

3. Master and Servant § 40c—

An accident “arises out of” the employment if it results from a risk involved therein or incident thereto, or to conditions under which the work is required to be performed, so that there is .a causal connection between the employment and the injury.

Appeal by defendants from Alley, J., at September Term, 1947, of Watauga.

Proceeding under Workmen’s Compensation Act to determine liability of defendants to widow and two minor children of Louis H. Crowell, deceased employee.

. Louis H. Crowell was manager of Belt’s Department Store in Boone, Watauga County. On the morning of 7 February, 1945, between 2:30 and 3 :00 a.m., 'bis lifeless body was found in tbe basement of tbe store building witb a .32 caliber pistol lying nearby. Tbe circumstances suggested suicide. .A coroner’s jury concluded tbat “tbe deceased came to bis death by a pistol sbot in bis own bands, either accidentally or intentionally inflicted.”

Tbe Industrial Commission found tbat “tbe deceased came to bis death by violence on tbe premises of tbe defendant employer, and at a place where tbe claimant (deceased), bad a right to be, and in tbe course of bis employment.” Hence, in-tbe absence of a showing of suicide, tbe Commission concluded tbat a presumption of accident would prevail under tbe decision in McGill v. Lumberton, 215 N. C., 752, 3 S. E. (2d), 324; S. c., 218 N. C., 586, 11 S. E. (2d), 873. Compensation was thereupon awarded on authority of tbat case.

On appeal to tbe Superior Court tbe award of tbe Commission was upheld. From this latter ruling, tbe defendants appeal, assigning errors.

Trivette, Holshouser & Mitchell and Wade E. Broivn for plaintiffs, appellees.

Helms •& Mulliss and James B. McMillan for defendants, appellants.

Stacy, C. J.

Tbe claimants frankly concede that tbe award, if sustained, must be made to rest on presumptions. Tbe hiatus in tbe case arises from tbe fact tbat while there may be a presumption of injury by accident, which occurred in tbe course of tbe employment, there is neither presumption nor evidence to support tbe conclusion tbat tbe injury arose out of tbe employment. Taylor v. Wake Forest, ante, 346; Lewis v. Ins. Co., 226 N. C., 325, 38. S. E. (2d), 97; Anno. 120 A. L. R., 683. This defeats tbe award.

There is no suggestion tbat tbe deceased was authorized to keep a pistol or to use it in tbe business of tbe employer. Tbe causal connection between tbe injury and tbe employment is not apparent as was tbe case in McGill v. Lumberton, 218 N. C., 586, 11 S. E. (2d), 873; S. c., 215 N. C., 752, 3 S. E. (2d), 324.

Tbe occurrence to an employee of an injury, (1) by accident (2) arising out of and (3) in tbe course of tbe employment, is tbe sine qua non to compensation under tbe North Carolina Workmen’s Compensation Act. G. S., Ob. 97. “Arising out of” has been defined to mean as coming from tbe work tbe employee is to do, or out of tbe services be is to perform, and as a natural result of one of tbe risks of tbe employment. Tbe injury must spring from tbe employment or have its origin therein. Ashley v. Chevrolet Co., 222 N. C., 25, 21 S. E. (2d), 834; Bryan v. Loving Co., 222 N. C., 724, 24 S. E. (2d), 751; Hunt v. State, 201 N. C., 707, 161 S. E., 203; Conrad v. Foundry Co., 198 N. C., 723, 153 S. E., 266. The accident “arises out of” the employment when it occurs in the course of the employment and is the result of a risk involved therein or incident thereto, or to the conditions under which it is required to be performed. Taylor v. Wake Forest, supra. There must be some causal connection between the employment and the injury. Canter v. Board of Education, 201 N. C., 836, 160 S. E., 924; Chambers v. Oil Co., 199 N. C., 28, 153 S. E., 594; Plemmons v. White’s Service, 213 N. C., 148, 195 S. E., 370; Ridout v. Rose’s Stores, Inc., 205 N. C., 423, 17 S. E. (2d), 642; Harden v. Furniture Co., 199 N. C., 733, 155 S. E., 728; Brown v. Aluminum Co., 224 N. C., 766, 32 S. E. (2d), 320; Wilson v. Mooresville, 222 N. C., 283, 22 S. E. (2d), 907; Robbins v. Hosiery Mills, 220 N. C., 246, 17 S. E. (2d), 20.

The record fails to sustain the award of the Industrial Commission. .Hence, the judgment below should have been for the appellants.

Reversed.