{ "id": 8560564, "name": "RALPH E. LEE, JR. v. F. M. HENDERSON & ASSOCIATES and IOWA MUTUAL INSURANCE COMPANY", "name_abbreviation": "Lee v. F. M. Henderson & Associates", "decision_date": "1973-11-14", "docket_number": "No. 14", "first_page": "126", "last_page": "136", "citations": [ { "type": "official", "cite": "284 N.C. 126" } ], "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": "195 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "17 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556070 ], "opinion_index": -1, "case_paths": [ "/nc-app/17/0475-01" ] }, { "cite": "261 Ala. 366", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5256621 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/ala/261/0366-01" ] }, { "cite": "203 Okla. 508", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 408064 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/okla/203/0508-01" ] }, { "cite": "161 A.L.R. 1454", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1945, "opinion_index": 0 }, { "cite": "354 Mo. 711", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1910829 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/mo/354/0711-01" ] }, { "cite": "221 A. 2d 246", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1966, "opinion_index": 0 }, { "cite": "107 N.H. 236", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4462592 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nh/107/0236-01" ] }, { "cite": "164 A. 2d 574", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "103 N.H. 71", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4458243 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nh/103/0071-01" ] }, { "cite": "141 S.E. 2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "177 S.E. 2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565857 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0444-01" ] }, { "cite": "158 S.E. 246", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "opinion_index": 0 }, { "cite": "200 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625464 ], "year": 1931, "opinion_index": 0, "case_paths": [ "/nc/200/0676-01" ] }, { "cite": "131 N.E. 2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "309 N.Y. 899", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2238990, 2239207 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ny/309/0899-01", "/ny/309/0899-02" ] }, { "cite": "139 N.Y.S. 2d 347", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1955, "opinion_index": 0 }, { "cite": "285 App. Div. 572", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 5388715 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ad/285/0572-01" ] }, { "cite": "119 N.E. 2d 570", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "307 N.Y. 15", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2233993 ], "year": 1954, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ny/307/0015-01" ] }, { "cite": "110 N.E. 2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "305 N.Y. 20", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2229668 ], "year": 1953, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/ny/305/0020-01" ] }, { "cite": "85 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "241 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612018 ], "year": 1955, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0448-01" ] }, { "cite": "131 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "310" } ], "opinion_index": 0 }, { "cite": "259 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562493 ], "year": 1963, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0724-01" ] }, { "cite": "188 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "281 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574679 ], "year": 1972, "pin_cites": [ { "page": "238-39" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0234-01" ] }, { "cite": "136 S.E. 2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "262 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566948 ], "year": 1964, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0272-01" ] }, { "cite": "153 S.E. 266", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "198 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619113 ], "year": 1930, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/198/0723-01" ] }, { "cite": "123 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] } ], "analysis": { "cardinality": 999, "char_count": 25949, "ocr_confidence": 0.529, "pagerank": { "raw": 2.914719081390028e-07, "percentile": 0.8460676664932975 }, "sha256": "bbb1345a3e81bafbd6b923e01e6bf38b89d99ce7d76d07c0c12583b81d585548", "simhash": "1:30b9247adc42ca77", "word_count": 4289 }, "last_updated": "2023-07-14T18:23:00.028129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RALPH E. LEE, JR. v. F. M. HENDERSON & ASSOCIATES and IOWA MUTUAL INSURANCE COMPANY" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nUpon appeal, plaintiff assigned as error the following portions of the Commission\u2019s findings of fact: (1) The finding \u201ccontained in paragraph No. 2 to the effect that the plaintiff was a' \u2018full-time salesman\u2019 at the time of the accident\u201d; (2) the finding \u201ccontained in paragraph No. 4 to the effect that the plaintiff had finished his training program prior to the time of the accident\u201d; and (3) the finding \u201ccontained in paragraph No. 7 which reads as follows: \u2018However, at the time complained of, plaintiff was performing an act personal to himself, constructing a doghouse for his own use, and this activity in no way enhanced the business of defendant employer. At the time complained of, plaintiff did not sustain an injury by accident arising out of and in the course of his employment.\u2019 \u201d\nThe Court of Appeals did not pass upon plaintiff\u2019s contentions that these findings were not supported by competent evidence. It decided that the facts found by the Commission established that plaintiff\u2019s injury was compensable.' ' \u2022\nIn reviewing the award of the hearing commissioner the Commission was authorized by G.S. 97-85 to \u201creconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award.\u201d This authority carried -with it \u201cthe power to modify or strike out findings of fact made by the . . . hearing Commissioner if in the judgrnent of the Commission such finding [was] not proper.\u201d Brewer v. Trucking Co., 256 N.C. 175, 182, 123 S.E. 2d 608, 613 (1962).\nThe only injury which is compensable under the Workmen\u2019s Compensation Act is an \u201cinjury by accident arising, out'of and in the course of the employment.\u201d G.S. 97-2(6) . \u201cThe words \u2018out of\u2019 refer to the origin or cause of the accident and the- words \u2018in the course of\u2019 to the-time, place, and circumstances under which it occurred. [Citations omitted.] There must, be some causal relation between the employment'and the injury; but if the. in jury is one which, after the event, may be-seen to have had its origin in the employment, it need not; be shown that it-is one-which ought to have been foreseen or, expected.\u201d Conrad v. Foundry Company, 198 N.C. 723, 726, 153 S.E. 266, 269 (1930).\nUnquestionably, plaintiff\u2019s injury by accident occurred \u201cin the course of\u201d his employment. It occurred on the morning of Saturday, 26 September 1970, when, as required by the terms of his employment, he was on duty in defendant\u2019s shop and warehouse. Whether his injury arose \u201cout of\u201d his employment is the determinative question.\n\u201cAn accident occurring during the course of an employment . . . does not ipso facto arise out of it. The term \u2018arising out of the employment\u2019 is not susceptible of any all-inclusive definition, but it is generally said that an injury arises out of the employment \u2018when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment.\u2019 Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E. 2d 643, 645 (1964).\u201d' Robbins v. Nicholson, 281 N.C. 234, 238-39, 188 S.E. 2d 350, 354. (1972).\n\u201cIn practice, the \u2018course of employment\u2019 and \u2018arising but of employment\u2019 tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection; and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength-in the other;\u201d 1 Larson, Workmen\u2019s Compensation Law \u00a7 29.00 (1972).\n\u201cWhether an accident arises out of the employment is a mixed question of fact and law, and the finding of the Commission is-conclusive if supported by any competent evidence; otherwise, not.\u201d Cole v. Guilford County, 259 N.C. 724, 726, 131 S.E. 2d 308, 310 (1963).\n' There was competent evidence to support the Commission\u2019s findings that plaintiff was \u201ca full-time salesman\u201d at the time of the accident; that he had finished his training program; and that he was injured when operating the defendant\u2019s electric saw to construct a doghouse for his own use. Unchallenged pertinent factual findings are set out below.\n\u201cSpecific findings of fact by the Industrial Commission-are required. These must cover the crucial questions of fact upon which plaintiff\u2019s right to compensation depends. [Citations omitted.] Otherwise, this Court cannot determine whether an adequate basis exists, either in fact or in law, for the ultimate finding as to whether plaintiff was injured by accident arising out of and in the course of his employment. [Citation omitted.] \u201d Guest v. Iron & Metal Co., 241 N.C. 448, 451, 85 S.E. 2d 596, 599 (1955).\nThe Commission\u2019s specific findings of fact include the following:\nPlaintiff was employed in early August of 1970. For the first two and one-half weeks of his employment, plaintiff worked exclusively in the employer\u2019s shop and warehouse, \u201cactually building cabinets.\u201d Ordinarily persons employed as salesmen were required to work in the shop and warehouse for approximately thirty days as a part of the training program. Plaintiff\u2019s training period was shorter because of his previous experience with woodworking machinery while in the armed forces. Each salesman was required to \u201cwork in the shop\u201d every third Saturday morning. It was plaintiff\u2019s turn to perform this duty on Saturday, 26 September 1970.\nDuring his training period, plaintiff obtained permission from Carl Smith, the manager of the employer\u2019s Raleigh office, to build a doghouse in the employer\u2019s shop during working hours when he had nothing else to do, using \u201cscrap\u201d material for that purpose. Smith helped plaintiff design the doghouse \u201con company time, using company materials.\u201d The doghouse was partially completed and left in the shop when plaintiff finished his training program.\nAfter reporting for work on the morning of Saturday, 26 September 1970, plaintiff received telephone instructions from F. M. Henderson, the owner of the business, \u201cto open the warehouse and shop and do whatever he saw needed to be done there.\u201d Thereupon, plaintiff \u201cwent into the warehouse and shop, swept the floors, cut some cabinet parts, and then helped the shop foreman, Norman Altman, unload a load of cabinets.\u201d At plaintiff\u2019s request, Altman reset the table saw \u201cso that it could be used to rip some three-eighths inch plywood scrap.\u201d After he reset the saw, Altman left, he not being required to work on this Saturday. While \u201cripping some three-eighths inch plywood scrap which he was intending to use in the completion of his doghouse,\u201d plaintiff\u2019s left hand was caught in the saw.\n\u201cIt was not unusual for plaintiff and his co-workers to use the defendant employer\u2019s equipment for personal projects when the employees were not busy with company work. A practice or custom had been established by the employer, allowing the employees to use such equipment.\u201d\nThe Commission\u2019s specific findings establish (1) that plaintiff\u2019s job included the actual use of defendant\u2019s shop equipment in the construction of cabinets and cabinet parts; (2) that plaintiff had \u201ccut some cabinet parts\u201d on Saturday, 26 September 1970, prior to his injury; (3) that he was injured when, during a Saturday morning lull, he resumed work on his uncompleted doghouse; (4) that, as permitted by his employer\u2019s established policy, he was using defendant\u2019s electric saw and \u201cscrap\u201d material; and (5) that plaintiff\u2019s construction of the doghouse under these circumstances had the express approval, cooperation and assistance of his superiors.\nUnquestionably, plaintiff\u2019s injury would be compensable if he had been injured a few minutes earlier while engaged in cutting cabinet parts. Too, his right to compensation would be clear if he had been injured later when cutting a cabinet part for some drop-in customer. The question is whether, under the circumstances of this case, compensation should be denied solely on the ground that the particular piece of plywood on which he was working when injured was intended for use in the doghouse, a project specifically approved by his superiors.\nNumerous cited decisions support the statement that \u201c[t]he Workmen\u2019s Compensation Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction.\u201d 5 Strong, North Carolina Index 2nd, Master and Servant \u00a7 47.\nPlaintiff was required to remain on duty in the shop and warehouse during the morning of Saturday, 26 September 1970, to act for his employer in the event any need for such action arose.\nThe rule applicable when the employee has been directed, as part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time, has been well stated by the Court of Appeals of New York in Davis v. Newsweek Magazine, 305 N.Y. 20, 28, 110 N.E. 2d 406, 409 (1953), as follows: \u201cIn those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.\u201d Quoting this statement of the rule and basing decision thereon, the Court of Appeals of New York in Penzara v. Maffia Bros., 307 N.Y. 15, 18, 119 N.E. 2d 570, 571 (1954), held the employee was entitled to compensation when injured, under circumstances closely analogous to those under, consideration in the present case.\nIn Penzara, undisputed evidentiary facts tended to show that claimant whs employed as a handyman in an automobile supply and machine shop; that he was required to remain upon employers\u2019 premises during intervals when there was no work available on a customer\u2019s automobile, but was customarily permitted to use employers\u2019 tools and do work upon his own automobile when not otherwise occupied; and that, during a slack period, he was injured by an accident when fashioning a spring steel clip for use on his own automobile. Compensation was awarded.\nOn authority of Penzara, compensation was awarded in Ingraham v. Lane Constr. Corp., 285 App. Div. 572, 139 N.Y.S. 2d 347, aff'd mem,, 309 N.Y. 899, 131 N.E. 2d 577 (1955).\n\u2022 Under the circumstances of the present case, we hold that plaintiff\u2019s use of - his employer\u2019s electric saw arid \u201cscrap\u201d material during the Saturday morning lull was a reasonable activity and ..that the risk inherent in such activity'was a risk of the employment. The reasonableness of plaintiff\u2019s activity on this occasion is attested-by the express approval of his superiors as well as by the established policy of his .employer.\nIn Bellamy v. Manufacturing Co., 200 N.C. 676, 158 S.E. 246 (1931), and in Stubblefield v. Construction Co., 277 N.C. 444, 177 S.E. 2d 882 (1970), the irijury occurred when the employee was required to reriiain at his place of employment but had no task to perform in furtherance of the employer\u2019s business. In Bellamy, the claimant, an employee in the spinning department, was required to remain in the mill for a half hour after work therein had stopped. During this period she was injured by\u2019accident while riding in an elevator to another floor of the mill for the purpose of seeing about getting her friend \u00e1 job in the mill. In Stubblefield, an employee of an electrical construction company was fatally injured on the premises of the Cherokee Brick Company. While awaiting the return of his foreman, the employee was standing in a room where several conveyor belts were in operation. The employee, when using his idle time to knock dust and pieces of brick from the conveyor rollers with a pair of pliers, came into contact with the conveyor and received fatal injuries. Compensation was awarded in both Bellamy and Stubblefield.\nIn Jones v. Desk Co., 264 N.C. 401, 141 S.E. 2d 632 (1965), cited by defendants, the factual situation was quite different from that now under consideration. In Jones, the Desk Company\u2019s policy did not permit an employee to do personal work on company time unless he first obtained permission from his foreman. Nor did it permit him to use cull or waste material for personal purposes without first presenting it to his superior for determination of its value and payment of the price fixed, if any. When injured, the plaintiff was using the Desk Company\u2019s \u201cshaper\u201d and material for his personal purposes and on company time, without obtaining permission to do so, all in violation of the Desk Company\u2019s policy.\nIn Maheux v. Cove-Craft, Inc., 103 N.H. 71, 164 A. 2d 574 (1960), compensation was awarded an employee who was injured at his place of employment during noon lunch hour when operating a table saw to manufacture a checkerboard for his own use. The evidence disclosed that such employees used their employer\u2019s saw during the lunch hour for individual projects and that the employer, although he had notice of this practice, did not forbid such use. The court\u2019s opinion states: \u201cIt is settled in this jurisdiction that activities of a personal nature, not forbidden, but reasonably to be expected, may be a natural incident of the employment, so that injury suffered in the course of such activities is compensable.\u201d Id. at 74, 164 A. 2d at 576.\nIn the later case of Hanchett v. Brezner Tanning Co., 107 N.H. 236, 221 A. 2d 246 (1966), compensation was awarded the dependents of an employee who was fatally injured when repairing his personal car during working hours, the car having slipped off the jack and crushed him. The employer maintained a garage and allowed its employees to repair their cars at this garage even during working hours. Under the circumstances, it was held that an occasional use by an employee of the employer\u2019s facilities to make repairs on his own car was reasonably expected and that the employee\u2019s death was compensable.\nWe have not overlooked the Commission\u2019s finding or conclusion that plaintiff when injured \u201cwas performing an act personal to himself\u201d and that \u201cthis activity in no way enhanced the business of the defendant employer.\u201d We take this as a finding that the particular piece of plywood with which plaintiff was working when injured was for his own personal use and that plaintiff\u2019s work thereon was of no value to the business of the employer. The specific findings of fact show that the employer, by its policy of permitting and encouraging such use of its equipment and \u201cscrap\u201d material, had determined that this course was for the mutual advantage of employer and employee in respect of employer-employee relationships as well as in development of the employees\u2019 skill in the areas of planning and construction. See Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W. 2d 915, 161 A.L.R. 1454 (1945).\nOur research has disclosed two decisions, Shirley v. National Tank Co., 203 Okla. 508, 223 P. 2d 540 (1950), and Foster v. Continental Gin Company, 261 Ala. 366, 74 So. 2d 474 (1954), which support defendants\u2019 contentions. Compensation was denied under circumstances undistinguishable from those in the case before us. In each, decision was based primarily upon the fact that at the precise time of injury the employee was working on an article for his personal use. In our view, the denial of compensation solely on this ground narrowly and unduly restricts the protection the Workmen\u2019s Compensation Act was intended to provide injured employees.\nOn this appeal, we need not decide whether we should adopt a rule similar to that enunciated in the cited decisions of the Supreme Court of New Hampshire. In affirming the decision of the Court of Appeals, we simply hold that, under the circumstances of the present case, plaintiff\u2019s use of his employer\u2019s electric saw and \u201cscrap\u201d material during the Saturday morning lull was a reasonable activity and that the risk inherent in such activity was a risk of the employment.\nAffirmed.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Teague, Johnson, Patterson, Dilthey & Clay by C. Woodrow Teague and Robert W. Sumner for defendant appellants.", "Manning, Fulton & Skinner by W. Gerald Thornton for plaintiff appellee." ], "corrections": "", "head_matter": "RALPH E. LEE, JR. v. F. M. HENDERSON & ASSOCIATES and IOWA MUTUAL INSURANCE COMPANY\nNo. 14\n(Filed 14 November 1973)\n1. Master and Servant \u00a7 94 \u2014 workmen\u2019s compensation \u2014 Commission\u2019s modification of commissioner\u2019s findings\nIn reviewing a workmen\u2019s compensation award of the hearing commissioner, the Industrial Commission is authorized to modify or strike out findings of fact made by the hearing commissioner, if in the judgment of the Commission such findings were not proper: G.S. 97-85.\n2. Master and Servant \u00a7 56\u2014 workmen\u2019s compensation \u2014 causal, relation between employment and injury\nIn order for an injury to be compensable under the Workmen\u2019s Compensation Act, there must be some causal relation between the employment and the injury; but if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected.\n3. Master and Servant \u00a7 56\u2014 workmen\u2019s compensation \u2014 injury ' arising \u201cout. of\u201d employment\nIt is generally said that an injury arises out of the employment when it is the natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment.\n4. Master and Servant \u00a7 56 \u2014 workmen\u2019s compensation \u2014 building doghouse for personal use \u2014 injury arising out of employment\nPlaintiff, a saleman employed by a cabinet manufacturer, worked in his employer\u2019s shop during his training period and obtained permission from his superiors to build a doghouse for his own use from scrap material during working hours when he had nothing else to do. Each of the employer\u2019s salesmen was required to work in the shop every third Saturday. While on duty in the shop one Saturday plaintiff cut some cabinet parts and, during a lull, resumed work on his uncompleted doghouse and injured himself with an electric saw. A practice or custom had been established by the employer allowing its employees to use its equipment for personal projects. Held: Plaintiff\u2019s use of his employer\u2019s electric saw and scrap material to build a doghouse during the Saturday morning lull was a reasonable activity and the risk inherent in such activity was a risk of the employment; therefore, plaintiff\u2019s injury arose \u201cout of\u201d his employment within the meaning of the Workmen\u2019s Compensation Act.\nON certiorari to the Court of Appeals.\nPlaintiff seeks compensation from his employer, F. M. Henderson & Associates, and Iowa Mutual Insurance Company, the employer\u2019s compensation insurance carrier, for an alleged injury by accident arising out of and in the course of the employment.\nThe jurisdictional facts were stipulated.\nThe initial hearing was before Chairman J. Howard Bunn, Jr. The evidence consisted of the testimony of plaintiff and of Norman Altman, employer\u2019s shop foreman. Based upon his findings of fact, Chairman Bunn concluded that plaintiff\u2019s injury was by accident arising out of and in the course of the employment and that plaintiff was entitled to compensation for permanent partial disability for the loss of a first finger and for the loss of a second finger as set forth in G.S. 97-31(2) (3). Thereupon, Chairman Bunn entered an award in plaintiff\u2019s favor.\nPursuant to defendants\u2019 notice of appeal and application for review, the case was heard by the Full Commission (Commission) as provided in G.S. 97-85. The \u201cOpinion and Award for the Full Commission\u201d by Commissioner Stephenson, Commissioner Shuford and Chief Deputy Commissioner Delbridge concurring, \u201cvacates and sets aside the Opinion and Award of Chairman Bunn in its entirety.\u201d Based upon its findings of fact, the Commission concluded that the injury sustained by plaintiff on 26 September 1970 was not by accident arising out of and in the course of the employment. An order entered by the Commission denied plaintiff\u2019s claim and provided that each side pay its own costs.\nThe following are the Findings of Fact of the Commission:\n\u201c1. The defendant employer owns and operates a business which consists of the manufacturing and installation of cabinet units to businesses in the Raleigh area. The business consists of- designing cabinet layouts for its customers and utilizing basic units constructed by the manufacturer. Carl Smith was the employer\u2019s manager for the Raleigh office and Norman Altman was the shop foreman. At the time complained of, the employer\u2019s shop and warehouse was one unit and located under one roof.\n\u201c2. Plaintiff is twenty-three years of age and was hired by the employer in early August of 1970 as a salesman. For the first two and one-half weeks of his employment, he worked exclusively in the employer\u2019s shop and warehouse to familiarize himself with the stock and the system of order as well as the period of time necessary for a cabinet shipment. All of the employer\u2019s salesmen were required to work in the shop and warehouse for approximately thirty days as a part of the training program, but plaintiff\u2019s training period was shorter than average due to the fact that he had had some experience with woodworking machinery while in the Armed Forces. For the first two and one-half weeks of his employment, plaintiff worked exclusively in the shop and warehouse, actually building cabinets. He then started riding with a salesman part time and working in the shop part time. At the time complained of, he worked in the shop only every third Saturday, the three salesmen rotating so that someone would be in the shop on Saturday mornings, and each working his turn. This was the first Saturday plaintiff had worked on his rotation since becoming a full-time salesman.\n\u201c3. The employer\u2019s shop had several pieces of highly sophisticated woodworking machinery, including but not limited to a rotisserie saw used for cutting formica and various pieces of lumber, and several skill and saber saws. One of the saws was a table-mounted electric saw with the blades protruding from a plate in the table which could be raised or lowered to regulate the depth of the cut. The safety guard on this particular table saw was missing at the time complained of. Plaintiff was never given any instructions by the defendant employer as to the use of this table saw, but he had had experience in working with this type of equipment while in the Army and was generally familiar with such equipment.\n\u201c4. Soon after beginning work with the defendant employer in early August of 1970, plaintiff had a conversation with Carl Smith and told Smith that he would like to build a doghouse to use at his home in the employer\u2019s shop. He obtained permission from Smith to work on this doghouse in the employer\u2019s shop during working hours when he had nothing else to do and to use \u2018scrap\u2019 material to build the doghouse. In fact, Smith helped plaintiff soon after beginning this employment to design the doghouse on company time, using company materials. When plaintiff had finished his training program, the doghouse was only partially completed and was left in the shop.\n\u201c5. On Saturday, September 26, 1970 plaintiff began work for the defendant employer in the shop and warehouse, this being his Saturday to work. For the first hour, he worked in the office and at approximately 8:45 A.M., the owner of the business, F. M. Henderson, instructed plaintiff by telephone to open the warehouse and shop and do whatever he saw needed to be done there. Plaintiff then went into the warehouse and shop, swept the floors, cut some cabinet parts, and then helped the shop foreman, Norman Altman, unload a load of cabinets. He then asked Altman to reset the saw so that it could be used to rip some three-eighths inch plywood scrap. After Altman reset the saw, he left, since he (Altman) was not required to work on this Saturday. Plaintiff then started ripping some three-eighths inch plywood scrap which he was intending to use in the completion of his doghouse. While ripping the plywood with the table saw above-described, his left hand became caught in the saw, resulting in loss by amputation of the first and second fingers of the left hand.\n\u201c6. The employer has continued plaintiff\u2019s salary to the present time and plaintiff has lost no wages by reason of his injury. A portion of his medical expenses has been paid by plaintiff\u2019s personal Blue Cross hospitalization carrier. No part of the medical expense incident to the injury has been paid by the employer or the workmen\u2019s compensation carrier in this case.\n\u201c7. It was not unusual for plaintiff and his co-workers to use the defendant employer\u2019s equipment for personal projects when the employees were not busy with company work. A practice or custom had been established by the employer, allowing the employees to use such equipment. However, at the time complained of plaintiff was performing an act personal to himself ; constructing a doghouse for his own use, and this activity in no way enhanced the business of the defendant employer. At the time complained of, plaintiff did not sustain an injury by accident arising out of and in the course of his employment.\u201d\nPlaintiff excepted to (1) designated findings of fact, (2) designated conclusions of law, and (3) the order denying his claim, and appealed. G.S. 97-86. Holding \u201cthat the Commission\u2019s conclusion of law that claimant did not sustain an injury by accident arising out of and in the course of his employment is not supported by its findings of fact which are pertinent to this appeal,\u201d the Court of Appeals reversed the order of the Commission and remanded the cause \u201cfor proceedings not inconsistent with [its] opinion.\u201d 17 N.C. App. 475, 195 S.E. 2d 48. On 30 April 1973 the Supreme Court allowed defendants\u2019 petition for certiorari to review the decision of the Court of Appeals.\nTeague, Johnson, Patterson, Dilthey & Clay by C. Woodrow Teague and Robert W. Sumner for defendant appellants.\nManning, Fulton & Skinner by W. Gerald Thornton for plaintiff appellee." }, "file_name": "0126-01", "first_page_order": 146, "last_page_order": 156 }