{ "id": 8605939, "name": "MINNIE BURCHFIELD STALLCUP, Widow, v. CAROLINA WOOD TURNING COMPANY, Employer, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier", "name_abbreviation": "Stallcup v. Carolina Wood Turning Co.", "decision_date": "1940-03-20", "docket_number": "", "first_page": "302", "last_page": "313", "citations": [ { "type": "official", "cite": "217 N.C. 302" } ], "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": "216 N. C., 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613851 ], "opinion_index": 0, "case_paths": [ "/nc/216/0744-01" ] }, { "cite": "216 N. C., 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601921 ], "opinion_index": 0, "case_paths": [ "/nc/216/0375-01" ] }, { "cite": "216 N. C., 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599632 ], "opinion_index": 0, "case_paths": [ "/nc/216/0306-01" ] }, { "cite": "216 N. C., 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598076 ], "opinion_index": 0, "case_paths": [ "/nc/216/0276-01" ] }, { "cite": "216 N. C., 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595434 ], "opinion_index": 0, "case_paths": [ "/nc/216/0123-01" ] }, { "cite": "196 S. E., 342", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628070 ], "opinion_index": 0, "case_paths": [ "/nc/213/0356-01" ] }, { "cite": "1 F., 278", "category": "reporters:federal", "reporter": "F.", "opinion_index": 1 }, { "cite": "223 N. W., 444", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "445" } ], "opinion_index": 1 }, { "cite": "198 Wis., 202", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8689014 ], "opinion_index": 1, "case_paths": [ "/wis/198/0202-01" ] }, { "cite": "177 P., 171", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 1 }, { "cite": "179 Cal., 432", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 1998028 ], "opinion_index": 1, "case_paths": [ "/cal/179/0432-01" ] }, { "cite": "172 N. Y. S., 724", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 1 }, { "cite": "184 App. Div., 820", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2966539 ], "opinion_index": 1, "case_paths": [ "/ad/184/0820-01" ] }, { "cite": "169 N. W., 561", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "168 Wis., 230", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8688645 ], "opinion_index": 1, "case_paths": [ "/wis/168/0230-01" ] }, { "cite": "89 Atl., 1023", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "85 N. J. L., 454", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 221384 ], "opinion_index": 1, "case_paths": [ "/njl/85/0454-01" ] }, { "cite": "166 N. E., 827", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "267 Mass., 307", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 844088 ], "opinion_index": 1, "case_paths": [ "/mass/267/0307-01" ] }, { "cite": "169 Tenn., 547", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8533360 ], "opinion_index": 1, "case_paths": [ "/tenn/169/0547-01" ] }, { "cite": "150 So., 88", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 10027208 ], "opinion_index": 1, "case_paths": [ "/so/150/0088-01" ] }, { "cite": "96 Pa. Super. Ct., 550", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 683938 ], "year": 1933, "opinion_index": 1, "case_paths": [ "/pa-super/96/0550-01" ] }, { "cite": "152 N. W., 416", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "160 Wis., 633", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8699428 ], "opinion_index": 1, "case_paths": [ "/wis/160/0633-01" ] }, { "cite": "199 S. E., 521", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "214 N. C., 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630134 ], "opinion_index": 1, "case_paths": [ "/nc/214/0281-01" ] }, { "cite": "191 N. W., 486", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "109 Neb., 489", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4538364 ], "opinion_index": 1, "case_paths": [ "/neb/109/0489-01" ] }, { "cite": "211 P., 361", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 1 }, { "cite": "72 Colo., 377", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2719189 ], "opinion_index": 1, "case_paths": [ "/colo/72/0377-01" ] }, { "cite": "182 N. Y., 284", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": 1 }, { "cite": "116 N. E., 330", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "64 Ind. App., 545", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 5141465 ], "opinion_index": 1, "case_paths": [ "/ind-app/64/0545-01" ] }, { "cite": "132 N. E., 664", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "665" } ], "opinion_index": 1 }, { "cite": "76 Ind. App., 551", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 2518450 ], "opinion_index": 1, "case_paths": [ "/ind-app/76/0551-01" ] }, { "cite": "175 N. E., 664", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "92 Ind. App., 348", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1556316 ], "opinion_index": 1, "case_paths": [ "/ind-app/92/0348-01" ] }, { "cite": "4 A. L. R., 107", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "169 P., 1087", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 1 }, { "cite": "66 Okla., 316", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 6443866 ], "opinion_index": 1, "case_paths": [ "/okla/66/0316-01" ] }, { "cite": "216 Ala., 129", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3623747 ], "opinion_index": 1, "case_paths": [ "/ala/216/0129-01" ] }, { "cite": "116 N. E., 842", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "843" } ], "opinion_index": 1 }, { "cite": "65 Ind. App., 828", "category": "reporters:state", "reporter": "Ind. App.", "opinion_index": 1 }, { "cite": "217 N. W., 264", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "265" } ], "opinion_index": 1 }, { "cite": "204 Iowa, 1348", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2300168 ], "opinion_index": 1, "case_paths": [ "/iowa/204/1348-01" ] }, { "cite": "153 N. Y. S., 554", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3254751 ], "opinion_index": 1, "case_paths": [ "/nys/153/0554-01" ] }, { "cite": "230 S. W., 498", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 10317668 ], "pin_cites": [ { "page": "503" } ], "opinion_index": 1, "case_paths": [ "/sw/230/0498-01" ] }, { "cite": "177 N. E., 292", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "293" } ], "opinion_index": 1 }, { "cite": "55 Ohio App., 177", "category": "reporters:state", "reporter": "Ohio App.", "opinion_index": 1 }, { "cite": "255 S. W., 446", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 10312272 ], "pin_cites": [ { "page": "447" } ], "opinion_index": 1, "case_paths": [ "/sw/255/0446-01" ] }, { "cite": "154 N. E., 168", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "23 Ohio App., 95", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1854049 ], "opinion_index": 1, "case_paths": [ "/ohio-app/23/0095-01" ] }, { "cite": "18 A. L. R., 127", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "197 P., 488", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "490" } ], "opinion_index": 1 }, { "cite": "81 Okla., 224", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8886096 ], "opinion_index": 1, "case_paths": [ "/okla/81/0224-01" ] }, { "cite": "244 N. W., 785", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "787" } ], "opinion_index": 1 }, { "cite": "123 Neb., 871", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2378663 ], "opinion_index": 1, "case_paths": [ "/neb/123/0871-01" ] }, { "cite": "154 S. E., 66", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "199 N. C., 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597671 ], "opinion_index": 1, "case_paths": [ "/nc/199/0236-01" ] }, { "cite": "153 S. E., 591", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "199 N. C., 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594993 ], "opinion_index": 1, "case_paths": [ "/nc/199/0038-01" ] }, { "cite": "160 S. E., 765", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "201 N. C., 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626771 ], "opinion_index": 1, "case_paths": [ "/nc/201/0556-01" ] }, { "cite": "157 S. E., 430", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "200 N. C., 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623029 ], "opinion_index": 1, "case_paths": [ "/nc/200/0463-01" ] }, { "cite": "100 S. E., 114", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "115" } ], "opinion_index": 1 }, { "cite": "211 Ala., 248", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8489102 ], "opinion_index": 1, "case_paths": [ "/ala/211/0248-01" ] } ], "analysis": { "cardinality": 1509, "char_count": 32324, "ocr_confidence": 0.489, "pagerank": { "raw": 7.353835481116665e-08, "percentile": 0.4413875094648375 }, "sha256": "6292ea15b3547b355558d72f5c91d9e1c0793b10d4e7905fb76fe101fae4c389", "simhash": "1:053354ea0d3e6a32", "word_count": 5670 }, "last_updated": "2023-07-14T22:38:29.672243+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "\u2022ClaeicsoN and Schehcic, JJ., concur in dissent." ], "parties": [ "MINNIE BURCHFIELD STALLCUP, Widow, v. CAROLINA WOOD TURNING COMPANY, Employer, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier." ], "opinions": [ { "text": "Barnhill, J.\nThe findings of fact, the conclusions of law and the opinion of the Commission in this cause are commendably full, clear and concise. The facts found are supported by the evidence and warrant the conclusion that the plaintiff is not entitled to compensation under the Workmen\u2019s Compensation Act. Ch. 120, Public Laws 1929. The facts thus found, being supported by evidence, are conclusive. Lockey v. Cohen, Goldman & Co., 213 N. C., 356, 196 S. E., 342; Johnson v. Lumber Co., 216 N. C., 123; Baxter v. Arthur Co., 216 N. C., 276; Tindall v. Furniture Co., 216 N. C., 306; Clark v. Sheffield, 216 N. C., 375; McNeill v. Construction Co., 216 N. C., 744.\nTbe parties have filed comprehensive briefs in which they discuss (citing many authorities) whether the conduct of deceased constituted a departure from and an abandonment of his employment and whether the creation of an unnecessary hazard bars recovery. The facts found by the Commission make it unnecessary for us to discuss these questions.\nThe accident did not occur during a rest period between the times the deceased was required to make his rounds of inspection. It happened at a time when it was his duty to be engaged actively in the boiler room cleaning out grates and increasing the head of steam in the boilers and about 10 minutes before he was to start his next round of inspection. He had delegated these duties to his son, who was then engaged in the performance thereof, and had retired to a temporary and precarious resting place of his own construction and of his own choosing. These facts, which are established by uncontradicted evidence offered by claimants and the defendants, and which are found, in substance, by the Commission do not require the conclusion, as a matter of law, that the conduct of the deceased does not constitute a deviation from or an abandonment of his employment.\nThe judgment below is\nAffirmed.", "type": "majority", "author": "Barnhill, J." }, { "text": "Seawell, J.,\ndissenting: The function of the Court is the interpretation and application of law \u2014 but not merely written law. Beyond this, there is a great body of principles established by public policy which we regard as binding. They are reflected in the decisions of the courts\u2014 of this Court as well as others \u2014 and, outside of constitutional amendment and statutory enactment, they offer the only known means of keeping law adjusted to enlightened progress. Without violating these principles the courts cannot establish arbitrary requirements between employment and labor contrary to recognized custom and usage which enter into the terms of the contract and so invite a return to conditions from which society has painfully lifted itself through the conflict and turmoil of the years.\nIn my opinion, the decision of the Industrial Commission denying compensation for the death of the watchman, Stallcup, is a serious departure from those principles, in adopting an arbitrary conception of the duties of the watchman, contrary to recognized standards, and in declining to recognize the rules of liberal construction which it was their duty to observe in the administration of the act. The result is to place upon common labor in this field, to the advantage of the employer and the insurance carrier, a burden which the law did not intend it to carry. Moreover, the main fact found by the Commission that the deceased was asleep at the time of the accident, or was arising from sleep, is not supported by any evidence whatsoever, and I think a fair interpretation of the order of the Commission admits it. I am not willing it should pass this Court with a mere formulary approval. The facts demand scrutiny.\nAll authorities agree that the provisions of workmen\u2019s compensation acts must be liberally and broadly construed in favor of the employee. \u201cIt is, of course, the settled rule everywhere.\u201d Ex parte Coleman, 211 Ala., 248, 100 S. E., 114, 115. Williams v. Thompson, 200 N. C., 463, 157 S. E., 430; West v. Fertilizer Co., 201 N. C., 556, 160 S. E., 765; Johnson v. Hosiery Co., 199 N. C., 38, 153 S. E., 591; Reeves v. Parker-Graham-Sexton, Inc., 199 N. C., 236, 154 S. E., 66; Cole v. Minick, 123 Neb., 871, 244 N. W., 785, 787. This is not only because they are remedial statutes, but because of their history great concessions of common law rights have been made, and because they are for the benefit of \u201cthe laboring class.\u201d Southern Surety Co. of New York v. Scheels, 49 S. W. (2d), 937; Henley v. Oklahoma Union Railway Co., 81 Okla., 224, 197 P., 488, 490, 18 A. L. R., 127; Stacy v. State Ind. Accid. Com., 26 P. (2d), 1092, 1094; Cleveland Railway Co. v. Kingdom, 23 Ohio App., 95, 154 N. E., 168. \u201cThe act in question arbitrarily restricts the rights of employees affected by it.\u201d \u00c6tna Life Ins. Co. v. Rodrigues (Tex. Civ. App.), 255 S. W., 446, 447. \u201cWith the utmost liberality,\u201d says Ind. Com. v. Sodec, 55 Ohio App., 177, 177 N. E., 292, 293. Also in Eastern Texas Elec. Co. v. Woods (Tex. Civ. App.), 230 S. W., 498, 503; McQueenie v. Sutphen & Hyer, 153 N. Y. S., 554. \u201cEvery intendment of the statute\u201d is the wording in Great American Indemnity Co. v. Essary (Tex. Civ. App.), 57 S. W. (2d), 891, 892. \u201cIt is the universal holding of the Court.\u201d Smith v. Marshal Ice Co., 204 Iowa, 1348, 217 N. W., 264, 265. This is not merely because it is a remedial law, but because of the complete wash-out of common law rights and remedies in favor of the employees which it brings about. In re Bowers, 65 Ind. App., 828, 116 N. E., 842, 843. It has been frequently held that all doubts as to the right to compensation should be resolved in favor of employees or their dependents. National Cast Iron Pipe Co. v. Higgenbottom, 216 Ala., 129, 112 S., 734. \u201cAll presumptions indulged will be in favor of those for whose protection the statutory compensation was fixed and who, by the terms of the act, are deprived of the ordinary remedies open to others whose rights are invaded.\u201d Wick v. Gunn, 66 Okla., 316, 169 P., 1087, 4 A. L. R., 107. Liberality of interpretation thus required extends to the nature and cause of the accident and injury, and whether or not it is within the orbit of employment. Specifically, the provision \u201carising out of and in the course of employment\u201d must be liberally construed. Stacy Bros. Gas Construction Co. v. Massey, 92 Ind. App., 348, 175 N. E., 664. \u201cThe words \u2018by accident arising out of and in the course of employment,\u2019 as used in workmen\u2019s compensation acts, should be given a liberal construction in order that the humane purpose of their enactment may be realized.\u201d Empire Health & Accid. Insurance Co. v. Purcell, 76 Ind. App., 551, 132 N. E., 664, 665; Holland St. Louis Sugar Co. v. Shraluka, 64 Ind. App., 545, 116 N. E., 330. It might be well to remember this word \u201chumane.\u201d\nContrary to accepted precedent and the theory upon which all workmen\u2019s compensation laws are based, the Commission achieved at the very first a point of view of rigidity and strictness. \u201cHis duties\u201d (night watchman at defendant\u2019s plant) \u201care very similar to those of a sentry or night guard on a military reservation.\u201d This is not the use of an unfortunate expression. It is the expression of an unfortunate attitude. The militaristic conception is faithfully followed at every vital turn in the case.\nI do not wish anything that I may say in the treatment of this case to be construed as reflecting on our Industrial Commission, which I regard as outstanding in this country, not only as to personnel but as to the fine contribution it has made to this difficult branch of administra-tional law by constructive decision. This, as I know, was not achieved without faithful study and a well informed and conscientious application of the Workmen\u2019s Compensation Act to the cases decided by that body. In that respect, the uniform correctness of decision, although in the history of the administration here very intricate matters had to be handled, has left the courts little to do. It is not 'amiss to say that the broad research made by members of this body into subjects connected with the administration of this and similar laws is nationally recognized. I only wish to point out that in my judgment a departure has been made in this instance from that liberality of construction which is enjoined both upon them and us, and a strictness applied in this case which is unusual in the decisions of that body, and which I think is in conflict with the rules, which should guide us in the interpretation of the law.\nThe evidentiary facts are undisputed and clear in their import and, therefore, the finding that the deceased employee did not come by his injury and death through an accident arising out of and in the course of his employment is a question of law. Baron v. National Metal Spinning & Stamping Co., 182 N. Y., 284, 169 Supp., 337; Ind. Com. v. Big Six Coal Co., 72 Colo., 377, 211 P., 361; Noskey v. Farmers Union Coop. Assn., 109 Neb., 489, 191 N. W., 486. Conclusions of fact are inferences which must not be based upon speculation but upon relevancy of the probative fact. Whether there is such relevancy the Court will determine.\nThere is no evidence to support the findings or conclusions of fact upon which this conclusion of law was predicated. To be more specific, there is no evidence in the record upon which the Industrial Commission could base the conclusion that the deceased watchman had made any deviation from bis employment and was outside of its orbit when bis injury was sustained.\nTbe undisputed facts are as follows: Stallcup was a watchman at tbe plant of tbe defendant company, tbe duties of wbicb position continued from eleven o\u2019clock in tbe evening until seven o\u2019clock in tbe morning. He bad other intermittent duties to perform in connection with this continuous employment as a watchman. It was bis duty to start fires in tbe boilers to get up steam in time to start tbe engines in tbe morning, and to beep tbe fires going in tbe drying plant. As watchman be was required to make periodic rounds and punch clocks in various positions on tbe premises to serve as evidence of bis inspection. With tbe exception of these periodic rounds bis activities were not scheduled as to time. Between bis rounds there were periods of comparative inactivity, during which' be was not required to be at one place more than another \u2014 a time during wbicb bis duties might be summed up as those of waiting and watching. What position be should take at such times \u2014 whether standing, sitting, or recumbent \u2014 was largely of bis own choosing.\nOn tbe morning of bis death be secured tbe services of bis son to fire tbe boiler for him and, between bis rounds of inspection, laid a plank upon a box on a walkway near tbe boiler room, placed bis raincoat upon it, and lay down to rest. A short time thereafter bis son came to tbe door, called him and reminded him that it was approaching time for tbe five o\u2019clock round. Tbe father responded by giving tbe young man instructions as to tbe firing of tbe furnace. Shortly thereafter this witness beard a fall, and going out found bis father bad fallen upon tbe concrete about eight feet below tbe walkway and seemed badly hurt, calling for a doctor. Young Stallcup went after bis mother, called tbe doctor, and when tbe doctor arrived it was found that tbe elder Stallcup was dead. Tbe autopsy showed that tbe left lung bad been injured and that be bad bled internally.\nUpon this evidence tbe Full Commission found that tbe deceased employee was asleep, or that be was in a dazed condition following sleep, when tbe accident occurred; that for bis own ease and comfort be bad taken up a position wbicb made it impossible for him to perform tbe duties of a watchman; that be bad delegated tbe duties of bis position to bis son, and bad thus abandoned them; that be bad increased tbe hazards of bis employment and, therefore, was without its pale.\nI take these findings somewhat in their order.\nThere is no evidence in tbe record that Stallcup was asleep at any time, nor is there any evidence that be was in a dazed condition following sleep at tbe time tbe accident occurred.\nHow far the Industrial Commission may be indulged in refusing to believe credible testimony is still to be worked out, but its arbitrary disregard of positive testimony and tbe substitution tberefor of mere speculation is within the power of review and correction by this Court.\nThere is no real evidence anywhere in this case that Stallcup was asleep on duty or asleep at all, although the able counsel for the defense pressed this phase of the case with commendable vigor and zeal, both in the development of the case before the Commission and in his argument here. The testimony of young Stallcup on this point, while confused at points, does not, in probative value, amount to evidence but, indeed, is to the contrary. The Commission, rightfully I think, took that view of it.\nThe Industrial Commission itself tool this view of the matter Toy finding (R., p. 36) that \u201cthere is no testimony that the deceased was asleep.\u201d Yet, out of the thinnest of thin air, the Commission permitted hypothetical questions to he propounded to witnesses, hasecl on the assumption that the deceased was asleep, and to testify as to conditions of mental confusion following a sudden awakening. (The diminution of the blood supply in the brain, caused by suddenly changing from a recumbent position to an erect position, as a matter of common knowledge frequently causes dizziness, without preceding sleep. The evidence refutes the finding that there was a dazed condition, but if it had been the case it was as easily attributed to this innocent cause as it was to sleep.\nWhat else is there in the evidence suggestive of sleep after this testimony was properly disregarded by the Industrial Commission? Nothing-more than that the deceased had been for some time in a reclining position, and that he fell. These facts have no probative relevancy to sleep, and any finding based upon them is pure speculation. Farfour v. Fahad, 214 N. C., 281, 199 S. E., 521.\nThe deceased was upon the premises. There was nothing in the nature of his employment that required him to be at any particular place at any particular time except as he made his rounds. In order, therefore, to remove him constructively from the orbit of his employment he must have been asleep, for in no other way could he negatived the attention and alertness of faculties which was, at the moment, all that could be required of him.\nEut concede for purposes of this analysis that the deceased had been asleep, and that this caused a deviation from his employment. As soon as he awoke he was upon the premises, at the very point physically, and morally, where the deviation had occurred, and he was eo instanti within the ambit of his employment, and in the very act of performing one of his more active duties, that of making the five o\u2019clock round. Schneider, Vol. 1, 2nd Ed., p. 1182; Conyer v. Canadian Northern Railroad Co., 12 N. C. C. A., 898.\nThere is no evidence in the record that any previous condition of sleep or inattention at this time clouded his faculties. There is this abstract statement by an expert witness that confusion might follow sleep. There is a speculation on the part of the Industrial Commission that this confusion then attended the watchman. They were not content with the positive testimony of young Stallcup that such was not the case. They were not content with the evidence that the watchman had given specific and intelligent directions with regard to starting the fire, denoting his full consciousness and awareness. The \u201ccircumstances,\u201d they conclude, show that he was asleep. There are no circumstances pointed out, and there are none other than I have stated, and if they have any relation at all to that condition it is, at most, speculation. The utmost sinning that can be imputed to the deceased is that he rested between rounds.\nThe Commission has undertaken to take judicial notice of the duties of a watchman, and the Court, inadvertently I think, has approved that principle, although it has been rejected by other tribunals. But, if the Industrial Commission may do so, so may this Court. But whether we go by the record or by a common knowledge of the employment as a watchman, the Industrial Commission has taken a view of the incidents of this employment entirely inconsistent with that held by textwriters and courts whose conclusions we have been accustomed to respect. They measure the demands of the employer no less than they do the liberties of the employee. They are far from regarding the employee as a slave whose humanities may be refused recognition, or a robot who has none. These uniformly recognize the human limitations which are involved in service, and from them we may epitomize the respect which must be paid by employer and employee to their mutual rights. \u201cNo break in the employment is caused by the mere fact that the workman is administering to his personal comfort or necessities as by warming himself or seeking shelter, or by leaving his work to relieve nature, or to procure drinks, refreshments, food, or fresh air, or to rest in the shade.\u201d Honnold, Vol. 1, p. 382; Koch v. Oakland Brewing and Malting Co., 1 Cal. I. A. C. Dec., 373; Jackson v. General Steam Fishing Co., Ltd., 2 B. W. C. C., 56, H. L. Ct. of Sess.; Clem v. Chalmers Motor Car Co., Op. Mich. Indus. Accid. Bd., Bul. No. 3, p. 40.\nA principle which the Commission seems wholly to have ignored is that in employment of this kind, where the more strenuous duties are intermittent, there is a period of comparative relaxation, if not leisure, in which attention to the personal comfort of the employee does not take him out of the orbit of his employment. Thus, in Iron Co. v. Ind. Comm., 160 Wis., 633, 152 N. W., 416, an employee who insuch an interval of inactivity went into a car to warm himself by heat from the briquettes which it was his duty to unload and in consequence thereof was killed through a collision with another car upon the track, the injury was compensable and the Court said: \u201cThe man\u2019s duties involved periods of leisure during wbieb apparently be was expected to bill time as best be might, witb no specific direction as to wbat be should do or where be should wait; the night was cold, and he put off dumping the'car until he could warm himself from its heated contents; tq say that in so doing he had left the master\u2019s employment, was pursuing his own private purposes, and doing something foreign to the work he was employed to do is illogical to a degree.\u201d\nA night watchman had gone to a shanty to cook food and it fell and injured him. He had no business in the shanty or to make fire there at night. The injury was held to have been sustained in the course of his employment. Morris v. Lambeth Borough Council, 8 W. C. C., 1, C. A.\nTo further support the view that a night watchman injured while resting between his rounds is entitled to workmen\u2019s compensation, we may note the following: Injury in fight in wash-room while preparing to eat lunch (Vordy v. Joseph Horne Co., 96 Pa. Super. Ct., 550); injury to eye during scuffle of other employees during lunch hour or during working period (Vignaul v. Howze, 150 So., 88, La. App., 1933); injury due to falling out of chair while reading at lunch time (Sears, Roebuck & Co. v. Finney, 169 Tenn., 547, 89 S. W. 2nd, 749; prostration from heat while sitting in sun during rest period (Holmes\u2019 Case, 267 Mass., 307, 166 N. E., 827); injury due to combing hair preparing to leave work (Terlecki v. Strauss, 85 N. J. L., 454, 89 Atl., 1023); death due to blasting of stumps by logging foreman during lunch hour (Lumber Co. v. Industrial Commission, 168 Wis., 230, 169 N. W., 561); going to answer telephone (personal call), Holland St. Louis Sugar Co. v. Shraluka, supra; returning to work upstairs after setting bottle of tea in basement (9 note, p. 933, Etherton v. Johnstown Knitting Mills Co., 184 App. Div., 820, 172 N. Y. S., 724, 17 N. C. C. A., 961).\nI have already expressed myself as to the effect the position which the deceased had taken up might have on the question of deviation from employment. As I have before stated, there is nothing in the record, and I know nothing regarding the duties of his employment, that would require him to be in any particular place during the time of his less active duties. A reasonable alertness to those duties is not inconsistent with his conduct in this respect, as disclosed by the record.\nThe deceased did not abandon his duties or deviate from his employment by delegating only a portion of his intermittent duties, that is, of firing the boiler, to his son. Employers\u2019 Liability Assurance Corp. Ltd. of London, England, v. Ind. Acc. Com. of California, 179 Cal., 432, 177 P., 171. This is especially true, since his duties as a watchman were continuous, to be performed notwithstanding any other duty, and this duty he did not delegate.\nThe main opinion says the accident \u201chappened at a time when it was bis duty to be engaged actively in tbe boiler room cleaning out grates and increasing tbe bead of steam in tbe boilers.\u201d Tbe record evidence does not support this. There is no evidence whatever in tbe record that it was bis duty to attend to tbe boilers at that particular time. On tbe contrary, firing tbe boiler was superadded to bis duty as watchman, did not produce a discontinuity in bis duties as watchman, and it was only necessary to fire tbe boiler in time to have steam up for tbe beginning of operations, then hours away.\nTbe Industrial Commission did not make a frank acceptation of tbe facts of tbe case above cited, Employers\u2019 Liability Assurance Corp. Ltd., of London, England, v. Ind. Acc. Com. of California. Its pertinency cannot be evaded. Tbe employee in that case was driving and steering tbe truck as well as manipulating tbe levers controlling tbe sprinkler, lie surrendered tbe important duty of driving and steering and control of tbe truck to a stranger, while be attended to tbe less responsible duty of manipulating tbe levers; yet tbe Court held that bis injury was com-pensable, upon tbe ground that be bad not wholly abandoned tbe duties of bis employment. \u201cHe was not outside tbe course of bis employment merely because be allowed a stranger to perform a part of bis task while be was engaged in tbe remainder of it.\u201d If we adopt that reasonable view, we are, thus, returned to a consideration, not whether be bad abandoned bis duty with respect to firing tbe boiler, but whether be bad completely deviated from bis employment as a watchman, a matter I have already discussed.\nTbe simple device of elevating one end of tbe plank, upon which tbe deceased lay, by placing it upon a box, is called by tbe Commission a \u201cdeath trap,\u201d and is held to have so added to tbe peril of tbe employment as to constitute a departure therefrom. If we were trying a case of negligence, it might be considered some evidence, but negligence, except as it may be regarded as an accident, is foreign to tbe theory of workmen\u2019s compensation laws. They are specially designed to be rid of that complicated field of jurisprudence and to reach justice with less refinement and more certainty. 71 C. J., p. 247. Tbe underlying theory is that of insurance. Maryland Casualty Co. v. Industrial Commission, 198 Wis., 202, 223 N. W., 444, 445.\nMost workmen\u2019s compensation acts specifically provide that tbe negligence of tbe employee shall not bar bis recovery. Tbe question as to whether a known act adds such a peril to employment as to bar compensation is one of law upon tbe facts. Tbe Court cannot consistently bold that this simple act of tbe deceased is of such a character as to defeat compensation without going deep into tbe field of negligence and deciding tbe case consciously or unconsciously, upon that principle. How remote tbe facts in tbe case at bar are from sustaining that principle may be best understood by illustrations from compensation cases :\nIt is said in Honnold on Workmen\u2019s Compensation, page 389: \u201cA peril which arises from the negligent or reckless manner in which he does the work which he is employed to do may well, and in most cases rightly, be held to be a risk incidental to the employment.\u201d Acts not in willful disregard of notice or known danger, but merely negligent, are not sufficient to defeat compensation.\nIn Pepper v. Sayer, 7 B. W. C. C., 616, C. A., where a farm bailiff, who needed something from a cowshed which was locked and did not want to go home for the key, imprudently got up on the window sill in an effort to reach what he wanted, slipped, and was killed in the fall, it was held to be an accident arising out of and in the course of his employment and compensable.\nIn Durham v. Brown Bros. & Co., Ltd., 1 F., 278, Ct. of Sess., where a workman seeking to find out the cause of a leak from a tank, climbed up to it by an obviously dangerous way, instead of by a perfectly safe way which was provided, and in consequence thereof was killed by some machinery which was close, the injury and death were said to be com-pensable.\nIn Bullworthy v. Glanfield, 7 B. W. C. C., 191, C. A., where a window \u2022cleaner tried to get from a window which he had just finished to the next by crawling along a narrow ledge, instead of going back into the room, and was injured, the injury was held to be caused by an accident arising out of and in the course of employment and was compensable.\nThe causes leading to the adoption of workmen\u2019s compensation acts are well known and well understood. 71 C. J., 242, et seq. In this State, at least, the chief of such causes was the fact that exposure to personal injury suits had become ruinous to industry. Such statutes, commendable as they are when properly administered, are in derogation of common law rights, and involve commitments, compromises, and concessions in which recoveries are drastically limited. Through them certainty and security are intended to be provided both to the employer and to the \u2022employee; most of all it is intended that the ends of justice may be reached by simple administrational processes short of the uncertainty and technicalities of negligence law. In return for these concessions, broader principles of liability were applied to employers, so that industry might take care of its own wreckage. When, because of the renaissance of these abandoned technicalities in the practice of administra-tional boards, it becomes apparent that these objectives can no longer be reached, the end of the experiment is in sight.\nThe judgment in this ease ought to have been reversed.\n\u2022ClaeicsoN and Schehcic, JJ., concur in dissent.", "type": "dissent", "author": "Seawell, J.," } ], "attorneys": [ "B. C. Jones, T. D. Bryson, Jr., and E. G. Bryson for plaintiff, appellant.", "Smathers & Meelcins for defendants, appellees." ], "corrections": "", "head_matter": "MINNIE BURCHFIELD STALLCUP, Widow, v. CAROLINA WOOD TURNING COMPANY, Employer, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier.\n(Filed 20 March, 1940.)\n1. Master and Servant \u00a7 55d\u2014\nFindings of fact of the Industrial Commission are conclusive on the courts when supported by any competent evidence.\n2. Master and Servant \u00a7 40f \u2014 Facts held not to show as matter of law that accident arose in course of employment and denial of compensation must he sustained.\nThe findings of fact of the Industrial Commission, supported by the evidence, were to the effect that deceased employee was a night watchman, that Ms duties were to make periodic inspection and to attend the furnaces and get up steam, that on the night in question he procured his son to help him, that he instructed his son to do certain of his duties in the boiler room, that he placed a small bos and plank on a walkway eight or nine feet high, with one end of the plank resting on the box, and lay down on the plank, that his son called him in time to make a periodic inspection some thirty minutes later, and that in getting up from his recumbent position, while his son was engaged in the performance of the employee\u2019s active duties in the boiler room, the employee fell from the walkway and was fatally injured. Held: The facts do not compel the conclusion, as a matter of law, that at the time of injury the employee had not deviated from, or abandoned his employment, and therefore the award of the Industrial Commission denying compensation must be upheld.\nSea well, J., dissenting.\nClarkson and Schenck, JJ., concur in dissent.\nAppeal by plaintiff from Pless, Jr., J., at October Term, 1939, of SwaiN.\nAffirmed.\nClaim for compensation under tbe Workmen\u2019s Compensation Act, prosecuted by plaintiff, widow of Setb L. Stallcup, deceased employee of tbe defendant Carolina Wood Turning Company,\nIt was admitted tbat tbe deceased busband of tbe plaintiff, Setb L. Stallcup, was an employee of tbe defendant Carolina Wood Turning Company; tbat tbe said defendant is bound by tbe provisions of tbe Workmen\u2019s Compensation Act and tbat tbe said employee received injuries on tbe early morning of 31 August, 1938, from wbicb be died. Tbe only question at issue before tbe Commission was as to wbetber tbe deceased employee met bis death from an accident arising out of and in tbe course of bis employment.\nTbe deceased was employed as a nigbt watchman at tbe defendant\u2019s plant and was charged with tbe general duties of a nigbt watchman and was required to attend to tbe furnaces, tbe dry kilns, etc. His hours were from 11 o\u2019clock p.m. to 7 o\u2019clock a.m. He bad been ordered not to allow anyone on tbe premises during tbe nighttime except certain employees who bad definite designated duties. Contrary to these instructions deceased bad been permitting bis son to assist him in tbe discharge of bis duties, and a few minutes prior to 4 o\u2019clock on tbe morning of 31 August, 1938, be went to bis borne, awoke bis son and directed him to come to defendant employer\u2019s plant and assist him. Tbe son arrived at tbe plant about tbe time deceased was completing bis 4 o\u2019clock round of inspection. Deceased instructed bis son to proceed,to perform certain duties in connection with preparing to make tbe fire in tbe furnace and stated tbat be, tbe deceased, was going to lie down and rest and cool off. Deceased then procured a box approximately 12 to 18 inches in height and about 12 inches broad, and also a plank, wbicb plank was about 12 inches wide and 10 or 12 feet long, wbicb be carried to a walkway wbicb was about 50 to 70 feet long and wbicb was built from tbe main plant to tbe boiler room and wbicb was about 3 feet wide and approximately 8 or 9 feet in beigbt above the ground. He placed the box on the walkway, then placed one end of the plank on the box and put a raincoat thereon and then lay down on the bed or resting place thus improvised. This was about 25 minutes after 4 o\u2019clock. Shortly before 5 o\u2019clock his son called or aroused him and spoke to him concerning the 5 o\u2019clock round of inspection. Deceased said he wished to make his round himself and directed his son to prepare to make a fire in the furnace; that he, the employee, would make the round and come back and help. A few minutes thereafter the son, having heard a noise, went out and found the employee lying on the ground where he had in some way fallen from the walkway. He was seriously injured and died in a few minutes as a result thereof.\nThe Commission found, in part, \u201cthat the deceased at the time of his death and for a period of 20 to 30 minutes prior thereto, had completely abandoned and deviated from his employment; that the acts which he performed during this period had nothing whatever to do with his employment and that the same were not to the interest nor to promote the interest of his employer, but, on the contrary, were for the personal pleasure, convenience and comfort of the deceased employee; that the creation of the box, plank and raincoat bed by the employee, consisted of an additional and dangerous hazard which had no connection whatever with the deceased\u2019s employment and that specifically the deceased Seth L. Stallcup did not meet his death from an injury resulting from an accident arising out of and in the course of his employment.\u201d\nUpon these and other findings made by the Commission it entered its order denying compensation. Upon the appeal of plaintiff the court below affirmed the judgment of the Commission and the plaintiff excepted and appealed.\nB. C. Jones, T. D. Bryson, Jr., and E. G. Bryson for plaintiff, appellant.\nSmathers & Meelcins for defendants, appellees." }, "file_name": "0302-01", "first_page_order": 368, "last_page_order": 379 }