#### H. R. WHITLEY v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Self-Insurer.

(Filed 28 October, 1931.)

Master and Servant F b — In this case held: injury to employee did not arise out of the employment and compensation was properly denied.

In order for an injury to be compensable under the Workmen’s Compensation Act it must not only arise in the course of the employment but also arise out of the employment with a causal connection between the accident and the employment, and where an employee of the State Highway Commission, while engaged in his employment, is accidentally shot by a hunter, the injury does not arise out of the employment and is not compensable even under a liberal interpretation of the statute.

Appeal by plaintiff from Devin, J'., at May Term, 1931, of Pitt.

Affirmed.

Plaintiff was an employee of the State Highway Commission.* On 5 February, 1930, he was accidentally shot by one O. S. Kittrell, while bird hunting, in the left eye and lost the vision. When shot plaintiff was at defendant’s truck shed about a mile or so from Greenville, N. 0., on Highway No. 91.

*540Plaintiff’s version of tbe occurrence is as follows: “I bad eaten dinner and started working on tbe truck — and I started to wipe some grease off tbe truck so we could jtut tbe transmission in and not get greasy. I bad been at work a while and near one o’clock I was standing beside tbe truck on tbe other side of tbe truck. Tbe truck was beaded toward tbe shed. I was wiping grease out of tbe foot board. All of a sudden I felt something stinging me and several things bit me on tbe shoulder. I beard a gun fire and I felt this and my eye started hurting and I knew I was shot. I called to tbe one that shot me and be came over there and Mr. Kittrell took me on to tbe car and Mr. Morton took me to Dr. Brown’s office.”

Tbe North Carolina Industrial Commission made an award to plaintiff. Tbe defendant appealed to tbe Superior Court and tbe decision of tbe Commission was reversed on tbe ground “that tbe injury complained of did not arise out of tbe plaintiff’s employment, tbe decision of tbe Industrial Commission is reversed, and tbe award denied.” From .the judgment plaintiff appealed to tbe Supreme Court.

Blount & James for plaintiff.

Charles Boss for defendant.

Clarkson, J.

Plaintiff, in bis request to tbe North Carolina Industrial Commission that bis claim be allowed, states: “We have been unable to agree because I believe tbe accident happened while I was in tbe performance of my duties to tbe State Highway Commission, and therefore, I am entitled to compensation.” Plaintiff’s contention was correct, in part, be was on duty when tbe unfortunate accident happened by which be lost tbe vision of bis left eye. An unfortunate and deplorable occurrence and tbe sorrow of tbe party who did tbe injury is thus expressed: “I am willing to do' anything, for him I can. I bated tbe accident so bad. I have never bit anything when I bunted before. I would not have done it for anything in tbe world. I did not sleep any for two or three nights worrying about it.”

Recovery by tbe workman can be only “compensation for personal injury or death by accident arising out of and in tbe course of tbe employment,” etc. Public Laws 1929, chap. 120, part sec. 4.

From plaintiff’s request it may be noted that be says “tbe accident happened while I was in the performance of my duties.” This is correct, but tbe law goes further — it must not only be when be is 'on duty “in tbe course of tbe employment,” but tbe compensation is “for personal injury or death by accident arising out of and in tbe course of tbe employment.” Humanitarian ideals prompted the passage of tbe act and *541this Court in considering tbe bigb purpose, has given it a liberal construction, but we cannot stretch tbe act to say tbe unfortunate accident to plaintiff arose out of tbe employment. Tbe general principle stated by plaintiff in cases cited is correct, but not applicable to tbe facts in tbis actipn.

We tbink there is no causal relation between tbe accident and tbe employment. For tbe reasons given tbe judgment of tbe court below is

Affirmed.