Pickard v. E. M. Holt Plaid Mills, Inc.

Clarkson, J. The sole question involved in this appeal is : Whether appellee, Jesse A. Pickard, employee, having purchased a bottle of milk from a wagon operated by appellant, E. M. Holt Plaid Mills, Inc., employer, and rolled by appellee’s place of employment, and having placed the same on the outer ledge of a window about 20 or 25 feet from his employment, sustained an injury arising out of and in the course of his employment, when he received a 20 per cent disability to his arm in later attempting to raise the window to secure the milk? We think so. When the injury occurred it was during plaintiff’s working hours and while he was on the job. *31 In Conrad v. Foundry Co., 198 N. C., 723, it is written (at p. 725) : “The Workmen's Compensation Law prescribes conditions under which an employee may receive compensation for personal injury. Section 2 (f) declares that ‘injury and personal injury shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except when it results naturally and unavoidably from accident.' The condition antecedent to compensation is the occurrence of an (1) injury by accident (2) arising out of and (3) in the course of the employment. . . . (p. 727). An accident arising ‘in the course of' the employment is one which occurs while ‘the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing’; or one which ‘occurs in the course of the employment and as the result of a risk involved in the employment, or incident to it, or to conditions under which it is required to be performed.' ” Hildebrand v. Furniture Co., 212 N. C., 100 (109). In Dependents of Poole v. Sigmon, 202 N. C., 172 (173), we find: “The findings of fact made by the North Carolina Industrial Commission, in a proceeding pending before the said Commission, are conclusive, on an appeal from said Commission to the Superior Court, only when there was evidence before the Commission tending to show that the facts are as found by the Commission. Otherwise, the findings are not conclusive, and the Superior Court, on an appeal from the award of the Commission, has jurisdiction to review all the evidence for the purpose of determining whether as a matter of law there was any evidence tending to support the finding by the Commission. West v. Fertilizer Co., 201 N. C., 556.” In Bellamy v. Mfg. Co., 200 N. C., 676 (678), it is said: “In L. E. A., 1916-A, at p. 237, we find: ‘An employee in a mill is not outside the scope of her employment in going from an upstairs room, where her work had run out, to a room downstairs, where she had been told by the overseer that there was work for her to do. And an employee by the week in a shop does not go outside of the employment merely because she leaves the shop for the purpose of getting a lunch.’ (Note 99.) In Surdine’s case (1914), 218 Mass., 1, post, 318, 105 N. E., 433, it was held that a girl employed in a shop who was employed by the week, does not go outside of the employment merely because she leaves the shop for lunch.” In Gordon v. Chair Co., 205 N. C., 739 (741-2) : “The plaintiff was an employee of the defendant, but was not certain the plant would run on the Monday morning he went to work. He lived some distance from the plant and rode to work with a fellow employee. There had been a big snow and he had his son to come with his automobile so that he *32 could ride back home, if the plant would not run that day. lie went to his place of work and found that the plant would run that day and put his lunch up. This was about the time the five-minutes-to-seven whistle blew. lie then went to the outside platform at the front of the plant to tell his son that the plant would run and his feet slipped on ice and he fell and was injured. We think the facts of this case come within the decision of Bellamy v. Mfg. Co., 200 N. C., 676.” The plaintiff, while on his job, about his master’s business, during the time he was working — at night — purchased a bottle of milk from the defendant’s confectionery wagon, from which defendant sold milk, sandwiches, etc., to the employees (a laudable enterprise). He raised the window some 25 feet away to put the bottle of milk on the outside ledge to keep it cool. When ready to drink the milk he attempted to again raise the window, with the help of a fellow employee, and it was frozen tight. His hand slipped and his right arm struck the window and broke the pane and his elbow was cut. It would be too technical to say that the injury did not arise “out of and in the course of the employment.” In the judgment of the court below is the following: “The conduct of the plaintiff was not such deviation from the course of his employment as would deprive him of the beneficial effects of the Employer’s Liability Act.” What the plaintiff did was the natural sequence, after purchasing the milk, to put it where it would keep cool until he was ready to drink it. For the reasons given, the judgment of the court below is Affirmed.