{ "id": 8617764, "name": "J. P. SOUTHERN, Employee, Deceased, and MRS. J. P. SOUTHERN et al., v. MOREHEAD COTTON MILLS COMPANY, Employer, and MARYLAND CASUALTY COMPANY, Carrier", "name_abbreviation": "Southern v. Morehead Cotton Mills Co.", "decision_date": "1931-01-27", "docket_number": "", "first_page": "165", "last_page": "171", "citations": [ { "type": "official", "cite": "200 N.C. 165" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "199 N. C., 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614106 ], "opinion_index": 0, "case_paths": [ "/nc/199/0733-01" ] }, { "cite": "198 N. C., 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619113 ], "opinion_index": 0, "case_paths": [ "/nc/198/0723-01" ] }, { "cite": "119 Ore., 357", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2037233 ], "opinion_index": 0, "case_paths": [ "/or/119/0357-01" ] }, { "cite": "288 Ill., 516", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4956032 ], "opinion_index": 0, "case_paths": [ "/ill/288/0516-01" ] }, { "cite": "276 Ill., 556", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4854331 ], "opinion_index": 0, "case_paths": [ "/ill/276/0556-01" ] }, { "cite": "268 Pa., 163", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1061509 ], "opinion_index": 0, "case_paths": [ "/pa/268/0163-01" ] }, { "cite": "110 A. R., 731", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "285 Ill., 31", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4924849 ], "opinion_index": 0, "case_paths": [ "/ill/285/0031-01" ] }, { "cite": "298 S. W., 414", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 10293633 ], "opinion_index": 0, "case_paths": [ "/sw/298/0414-01" ] } ], "analysis": { "cardinality": 760, "char_count": 17121, "ocr_confidence": 0.423, "pagerank": { "raw": 2.997858758007064e-07, "percentile": 0.8521859768658328 }, "sha256": "6d22fcd3aec7d0870f4ed9192beb573c2fc71acd5974a7c7382ee06b53fe9056", "simhash": "1:55bf83e13f76a3bc", "word_count": 3089 }, "last_updated": "2023-07-14T16:40:42.579520+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. P. SOUTHERN, Employee, Deceased, and MRS. J. P. SOUTHERN et al., v. MOREHEAD COTTON MILLS COMPANY, Employer, and MARYLAND CASUALTY COMPANY, Carrier." ], "opinions": [ { "text": "ClarksoN, J.\nThe decision of this action is found in advance sheets of opinions in cases heard and determined by the North Carolina Industrial Commission, Yol. 1, No. 5, p. 200. The findings of fact and conclusions of law by J. Dewey Dorsett, Commissioner, are not set forth in the above published opinion.\nSec. 2 (f) of the North Carolina Workmen\u2019s Compensation Act reads as follows: \u201c 'Injury\u2019 and 'personal injury\u2019 shall mean only injury by accident arising out of and in the course of the eriiployment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.\u201d\nIn Johnson v. Hosiery Co., 199 N. C., at p. 40, it is said: Sec. 2(b) \u201cundertakes to define the word employment and specifically excludes from the operation of the act 'persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer,\u2019 etc. . . . It is further provided in section 60 that the award of the Commission 'shall be conclusive and binding as to all questions of fact.\u2019 However, errors of law are reviewable. It is generally held by the courts that the various compensation acts of the Union should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation.\u201d Rice v. Panel Co., 199 N. C., at p. 157.\nThe Commissioner, Dorsett, found: \u201cIn view of the foregoing we make the further finding of fact that J. P. Southern met with an accident arising out of and in the course of his employment upon the premises of his employer which resulted in his death.\u201d The full Commission, upon appeal, sustained this finding of fact.\nIn the present action there was sufficient evidence to sustain the finding of the Industrial Commission. We think the finding borne out by the weight of authority.\nIn Indemnity Co. v. Scott, 278 S. W., at p. 348 (Texas) : \u201cThe finding of the court in.favor of appellees being general, every issuable fact must be considered found in their favor if there is any evidence to support such a finding. In passing upon the sufficiency of the evidence to sustain each such finding, we must view tbe same in the light most favorable thereto, rejecting all evidence favorable to the opposite contention, and considering only the facts and circumstances which tend to sustain such finding.\u201d S. C., 298 S. W., 414 (Texas).\nIn Pekin Cooperage Co. v. Industrial Com., 285 Ill., 31 (120 N. E. Rep., at p. 531) : \u201cOur consideration of the evidence is limited to the inquiry whether the record contains competent evidence to sustain the award. If the evidence in favor of the applicant sustains the award, the weight of the evidence to the contrary will not be considered by the reviewing court. The determination of the facts upon contradictory evidence by the Industrial Commission is final.\u201d Kuca v. Lehigh Valley Coal Co., 110 A. R., 731 (268 Pa., 163); Chicago Dry Kiln Co. v. Industrial Board, 276 Ill., 556.\nIn Baum v. Ind. Com., 288 Ill., 516, 6 A. L. R. Anno., at p. 1247: \u201cWhile compensation under the statute ordinarily is not recoverable unless the injury arises out of the employment, the cases, almost without exception, hold that an employee does not go outside his employment if, when confronted with a sudden emergency, he steps beyond his regularly designated duties in an attempt to save himself from injury, to rescue another employee from danger, or to save his employer\u2019s property.\u201d Dondenean v. State Ind. & Acci. Com., 119 Ore., 357, 50 A. L. R. (Anno.), p. 1148. \u201cBy accident arising out of and in the course of the employment\u201d see definition given in Conrad v. Foundry Co., 198 N. C., 723. Harden v. Furniture Co., 199 N. C., 733; Phifer v. Dairy, ante, 65; Davis v. North State Veneer Corp., post, 263.\nIn the present case there is no dispute that the employee was on duty on the defendant\u2019s mill property as night watchman at the time of the accident, and had been for years in the employ of defendant as nightwatchman. His conduct just prior to the accident was all in furtherance of his employer\u2019s business. It was necessary to safely run the machinery in the mill that the gates be down, but the gates were raised after the man plunged in the race in his machine, and could not be dropped until the automobile was gotten out. Every effort was made to get the automobile out, and a few hours after Southern was drowned it was gotten out so that the mill could run. The conduct of Southern undoubtedly leads to the conclusion that he went in the race to get the automobile out and miscalculated the swiftness of the current. He often cleaned out debris in the race before, and his wife said that he stated on one occasion before, \u201cThis is my job getting planks and things out of the race.\u201d This faithful employee, in performing a hazardous duty, to protect his employer\u2019s property and keep the mill running, lost his life by accidental drowning. It was \u201can injury by accident and arising out of and in the course of the employment.\u201d The Commission so found, and there was competent and sufficient evidence to support the finding. The deceased belonged to that noble army of workmen who serve their employers faithfully and not by \u201ceye service,\u201d and in' attempting to save the property of his employers, accidentally lost his life and left dependent a wife and children. The beneficent purpose of the act was that industry would care for the widow and orphan in such cases as the present.\nThe case of Davis v. North State Veneer Corp., post, 263, is clearly distinguishable. The judgment of the court below is\nReversed.", "type": "majority", "author": "ClarksoN, J." } ], "attorneys": [ "Fagge & Walker for plaintiffs.", "G. 0. MoMichael, Sr., for defendants." ], "corrections": "", "head_matter": "J. P. SOUTHERN, Employee, Deceased, and MRS. J. P. SOUTHERN et al., v. MOREHEAD COTTON MILLS COMPANY, Employer, and MARYLAND CASUALTY COMPANY, Carrier.\n(Filed 27 January, 1931.)\n1. Master and Servant F i \u2014 Findings of fact of Industrial Commission are conclusive on courts when supported by sufficient evidence.\nTlie findings of fact of a member of the Industrial Commission in a hearing before Mm under the Workmen\u2019s Compensation Act, approved by the full Commission upon appeal, is conclusive upon the courts when supported by any sufficient evidence.\n2. Master and Servant F b \u2014 Evidence held to support finding that death resulted from accident arising out of and in course of employment.\nEvidence tending to show that an employee of a mill using water power had the duty of keeping the race at the dam on the employer\u2019s premises clear of obstructions for the continued or proper running of the machinery of the mill, and that he came to his death in assisting the removal of an automobile from the water during his working hours by being drowned in the fast flowing waters in the race, is sufficient evidence to sustain a finding of the Industrial Commission that his death was caused by an accident arising out of and in the course of his employment and awarding recovery to the claimant under the provisions of the statute.\nAppeal by plaintiffs from Johnson, Special Judge, at June Term, 1930, of Forsyth.\nReversed.\nTbe findings of fact, as set forth by J. Dewey Dorsett, Commissioner :\n\u201cIt is admitted and is a part of this record, and is now found as a fact that the deceased met his death by accidental drowning while regularly employed by the defendant employer; that his average weekly wage amounted to $22.64 per week, that his wife, Mrs. J. P. Southern, and minor children, Stanford, Elaine and Talmadge Southern, were at the time of J. P. Southern\u2019s death and for the three months prior thereto wholly dependent for support upon the deceased.\nThe owner of the mill has this to say: 'His duties (referring to the deceased) consisted principally of making the rounds, but his duties also consisted of helping raise and lower the gates to the dam, look after the property around there and the tail race.\u2019\nMr. Royster, the superintendent of the defendant employer, has this to say: \u2018He made the rounds, punched the clock and fired; we were \u25a0carrying a light fire that night. He looked out for the property all around, and in case anything got in the race it was his duty to get it out, or to get some one else to help him to get it out, and he had charge of the pour, together with the gates and race and anything around there. If the water got too high and he couldn't raise the gates he would go in the mill and get people to help him or see the night foreman.\u2019\n\u2018Q. Where were you at the time this accident occurred? A. I was at supper. My son called me and said the overseer had asked him to call me \u2014 that an automobile had run in the pond and that they would have to drain it to get it out, and that we would have to shut down the mill for three nights after that. I jumped in my car and rushed over to the mill.\u2019\nThe superintendent testified that he thought the deceased was under the impression that the car was full of folks, and further that he did not know that any one had ordered the deceased to jump into the canal for the purpose of rescuing the folks in the car.\nMr. Royster, the superintendent, was asked this question.: 'Q. Would you consider his going into the pond to rescue this man in his line of duty? A. The only way I could consider it in that light was that he knew that if something weren\u2019t done \u2014 if he didn\u2019t get the car out it would interfere with the running of the mill; \u201cthat if the water all run they would have to shut down the mill. I don\u2019t know whether he knew we could run without that water, but such was the case. If he didn\u2019t, he would do all he could to help the mill folks get started up. We met Mr. Mizelle and told him that the water would have to be drained off, and the only way to do it was by raising the gates and that\u2019s what he did. He had all the water cut out. Then they could get the car out before the water was put in again. Mr. Southern was a man that would do anything to keep his job going, and maybe he construed it to be in his line of duty to help \"get the car out and get the people out. He wanted to keep from having to drain it next day, and get it out so the mill could start up work. He might have construed it in that way.\u2019 The superintendent further testified that it was a part of the deceased\u2019s duties to keep the pond clean, and was asked this question: \u2018Q. As a matter of fact, if he had been assisting in getting the automobile out so the gates could be lowered he would have been assisting the company in keeping the water up so the boilers wouldn\u2019t run low? A. Yes, sir. Q. The quicker the automobile was gotten out the quicker the gates could be lowered, and it was to the company\u2019s interest if he did this so the boilers would not have gotten too low? A. Yes, sir.\u2019 Mi-. Royster was asked another question: \u2018Q. If he jumped in, Mr. Royster, -in your opinion wasn\u2019t it in the discharge of his duties in looking after the company\u2019s property, and wasn\u2019t he right there at that particular time to see about the water ? Didn\u2019t he go in there to get the automobile out to enable you to fill the boiler more quickly so the mill could continue running? A. Yes, sir, he could have been of assistance, of course, and the gates could not be dropped until the automobile was gotten out. I think be was aiming to go over there and help until they found the body and get the automobile out.\u2019\nCounsel for the defendants asked this question: \u2018Q. In your opinion was his primary purpose to save the man or to disregard the man and try to keep the mill going? A. Well, knowing the man as I did \u2014 he had a rather nervous disposition, and I think Mr. Southern was highly excitable \u2014 he was always a man that was fond of working, and he always wanted to help somebody, and he would go through the mill and see somebody that needed a lift and would help him; he was always a man to give somebody a lift, and I think his Avhole-soul purpose was to get to the car, and get the car out, and help rescue somebody or ascertain if he could lower the gates. Q. His main purpose was to save a life? A. That\u2019s my honest opinion as to why he did that. Q. Would the car in the canal have interfered with the operation of the mill? A. Well, no, provided we didn\u2019t let the water out. Q. You were anxious that the ear be gotten out? A. I stayed there until midnight to do it. Q. Would you have directed your men to get the car out had you been there? A. Yes, sir, I would have proceeded to have gotten it out as quick as I could so we could let the gates down.\u2019\nThe superintendent was asked this question: \u2018Q. Was it in the line of his duty as night watchman; that is, do you consider it a part of his duty to superintend and help get the car out of the canal? A. If there was any trouble, or anything happened down there, he went to the night overseer if it was anything he could not handle. I suppose he was under the impression that they could hold him responsible for the water. Q. As superintendent you were interested in the removal of the ear and the parties in the car? A. Yes, sir. Q. Did any of your other employees go into the water to get the car out, that you know of? A. No, sir, we got a garage man to get it out.\u2019\nIn view of the foregoing we make the further finding of fact that J. P. Southern met with an accident arising out of and in the course of his employment upon the premises of his employer which resulted in his death.\u201d\nAGREED STATEMENT 0E CASE ON APPEAL.\nThe action was originally commenced before the North Carolina Industrial Commission and arose out of a claim for compensation on account of the death of the said.J. P. Southern, who was fatally injured while in the employ of the defendant, Morehead Cotton Mills Company.\nThe case was first heard before Hon. J. Dewey Dorsett, of the North Carolina Industrial Commission at Wentworth, North Carolina, on 30 October, 1929. Commissioner Dorsett filed an opinion in said case in which he sustained the contentions of the plaintiffs that said accident arose out of and in the course of the employment and made an award in favor of said plaintiffs for compensation at the rate of $13.58 per week, payable weekly, for a period of 350 weeks; and funeral expenses not to exceed $200.\nOn 6 November, 1929, the defendants appealed from the award of Commissioner Dorsett to the full Commission. The case was heard before the full Commission on 19 November, 1929, and thereafter, an opinion for the full Commission was filed by Chairman Matt H. Allen, in which the findings of fact and award of Commissioner Dorsett were adopted and affirmed.\nThereafter on 16 January, 1930, the defendants gave notice of appeal from the aforesaid award of the full Commission to the Superior Court of Eockingham County, and the same was transferred for trial to the Superior Court of Forsyth County, where the same was heard on said appeal before his Honor, T. L. Johnson, at the June Term, 1930, of the Superior, Court of Forsyth County. Judge Johnson rendered judgment, denying compensation to plaintiffs, overruling and setting aside the award originally made to them by Commissioner J. Dewey Dorsett and approved by the full Commission, and expressly adjudged that the accident did not arise out of the employment of J. P. Southern.\nIt is admitted that at the time of his death the deceased was in the employ of the defendant, Morehead Cotton Mills Company, and it is the contention of plaintiffs that the injury resulting in the death of the deceased arose out of and in the course of his employment, while the defendants deny this contention, and contend that such injury did not arise out of the employment of the said J. P. Southern. It is further admitted that the employer and the deceased employee, at said time, were subject to the provisions of the North Carolina Workmen\u2019s Compensation Act, and that the average weekly wage of the deceased, at the time of his death, was $22.64.\nTo the judgment of Judge T. L. Johnson, setting aside the award made by the Industrial Commission to the plaintiffs, plaintiffs duly excepted, assigned error and appealed to the Supreme Court.\nOpinion, in part, of full Commission: \u201cCommissioner Dorsett, upon all of the evidence, reached the conclusion that the accident did arise out of and in the course of the employment, and has sustained this position in an able opinion filed with the Commission. This Commission, after careful consideration of all .the evidence and the arguments and briefs of counsel for plaintiff and defendant, hereby agrees to and adopts the findings of fact, award, and opinion made therein, and accepts said findings of fact, award, and opinion as the findings of fact, award and opinion of the full Commission. Matt II. Allen, Chairman.\u201d\nStipulation: \u201cIt is further agreed that the findings of fact by the Commissioner are in accordance with and are supported by the evidence, except that part of findings of fact reading as follows: 'In view of the foregoing, we make the further finding of fact that J. P. Southern met with an accident arising out of and in the course of his employment upon the premises of his employer, which resulted in his death.\u2019 \u201d\nFagge & Walker for plaintiffs.\nG. 0. MoMichael, Sr., for defendants." }, "file_name": "0165-01", "first_page_order": 233, "last_page_order": 239 }