Butler ex rel. Butler v. Jones Plumbing & Heating Co., 244 N.C. 525 (1956)

Sept. 26, 1956 · Supreme Court of North Carolina

244 N.C. 525

MRS. GRACE ELAINE McC. BUTLER, Widow; MRS. GRACE ELAINE McC. BUTLER, Next Friend for PATSY BUTLER, Minor Daughter; BONNY BUTLER, Minor Daughter; BILLY BUTLER, Minor Son, and JOHNNY BUTLER, Minor Son; JOHN CARLTON BUTLER, Deceased, Employee, v. JONES PLUMBING & HEATING COMPANY, Employer; GENERAL ACCIDENT FIRE & LIFE INSURANCE COMPANY, Carrier ; and CONN STRUCTORS, Employer; UNITED STATES CASUALTY CO., Carrier.

(Filed 26 September, 1956.)

Master and Servant § 40c—

Evidence to tbe effect that the employee was injured while working under the supervision of his superior in attempting to make repairs on a drum belonging to another contractor working in the same building and on the same job, with evidence that the two contractors had on prior occasions assisted each other without charge, supports the conclusion that the injury arose out of and in the course of the employment.

Johnson, J., not sitting.

Appeal by defendants Jones Plumbing & Heating Company and General Accident Fire & Life Insurance Company from Bundy, J., November, 1955 Term, Craven Superior Court.

This action originated before the North Carolina Industrial Commission upon a claim for compensation filed by the dependent widow on behalf of herself and the four minor dependent children of John Carlton Butler, deceased employee, for injury and death as the result of an accident arising out of and in the course of his ¿mployment as a welder for Jones Plumbing & Heating Company. The deputy commissioner conducted a hearing, made findings of fact, stated his conclusions of law, and awarded compensation. The defendant employer and its insurance carrier filed exceptions and assignments of error and appealed first to the full commission.and from its adverse ruling, then to the Superior Court of Craven County. Judge Bundy overruled all exceptions and entered judgment affirming the award of the full commission in all particulars. From the judgment the defendants appealed, .assigning errors.

W. K. Rhodes, Jr., for plaintiffs, appellees: '

Barden, Smith & McCotter for defendants, appellants:

Thomas A. Banks for defendants Conn Structors and United States Casualty Company, appellees.

Per Curiam.

The evidence before the hearing commissioner fully sustained his findings of fact and conclusions of law. They in turn supported the award. On the evidence presented, it is difficult to see how any other result could be reached. The record shows that the deceased employee was working under the direct supervision and instruction of his superior in attempting to make repairs on a drum that actually belonged to another contractor working in the same building and on the same job. The evidence showed also that the two contractors .had on prior occasions assisted each other without charge. Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596. The record here is free from error and the judgment is Affirmed.

Johnson, J., not sitting.