Tscheiller v. National Weaving Co.

BabNhill, J. It is alleged in the complaint that the corporate defendant employed several hundred employees, including the plaintiff. The presumption is that the parties to this action have accepted the provisions of the Workmen’s Compensation Act and are bound thereby. Public Laws 1929, ch. 120, sec. 4; Michie’s N. C. Code of 1935, sec. 8081 (k); Hanks v. Utilities Co., 204 N. C., 155, 167 S. E., 560; Lee v. American Enka Corp., 212 N. C., 455; Murphy v. American Enka Corp., 213 N. C., 218. The rights and remedies granted to an employee who has accepted and is bound by the provisions of the Workmen’s Compensation Act are exclusive of all other rights and remedies of such employee as against his employer, at common law or otherwise. Public Laws 1933, ch. 449; Michie’s N. C. Code of 1935, sec. 8081 (r); Brown v. R. R., 202 N. C., 256, 162 S. E., 613; McNeely v. Asbestos Co., 206 N. C., 568, 174 S. E., 509. An injury suffered by an employee while engaged in his master’s business within the scope of his employment proximately resulting from the negligence of fellow employees is, as to the employee, an “accident” arising out of and in the course of his employment. It is not the purpose of the Workmen’s Compensation Act to exculpate or absolve employers from the consequences of their negligent conduct. The field of cases in which compensation is to be awarded was enlarged by the act so as to include accidents not directly attributable to negligence. McNeely v. Asbestos Co., supra; Slade v. Hosiery Mills, 209 N. C., 823, 184 S. E., 844; Johnson v. Hughes, 207 N. C., 544, 177 S. E., 632. When an employer undertakes to sell to his employees during their hours of employment sandwiches or other food or drinks the purchase and consumption thereof by the employee is not such a deviation from the course of his employment as would deprive him of the beneficial effects of the Workmen’s Compensation Act. In such instances it is apparent that both the employer and the employee contemplate that such *453 food or drinks shall be purchased and consumed during the course of employment for the refreshment of the employee. If injury results therefrom to the employee as a proximate result of the negligence of the employer in offering food or drink unfit for use the employee suffers an accident arising out of and in the course of his employment within the meaning of the 'Workmen’s Compensation Act. Pickard v. Plaid Mills, 213 N. C., 28. "While it is alleged that the corporate defendant was engaged in the textile manufacturing business and also in the business of selling sandwiches and cold drinks it is not made to appear in the complaint that sandwiches and cold drinks were offered for sale to the general public. Even so, it is specifically alleged that the defendant Banks McArver was employed for the purpose of selling such sandwiches and cold drinks in the mill of the corporate defendant to its employees and that arrangements were made for the employees to purchase coupon books of tickets to be used in the purchase of same. The risk incident to the purchase thereof by employees was not common to the public, but was peculiar to the employees of the company, Lockey v. Cohen, Goldman & Co., 213 N. C., 356. If the plaintiff purchased from another employee of the corporate defendant a sandwich which was unfit for human consumption and proximately sustained injuries by reason thereof, under the circumstances alleged in the complaint, his remedy is under the "Workmen’s Compensation Act, which is exclusive of all other remedies. The Industrial Commission has exclusive jurisdiction of plaintiff’s claim only against the employer. His right of action against the individual defendant is at common law in the Superior Court. As to him the "Workmen’s Compensation Act has no application. Public Laws 1933, ch. 449; Michie’s N. C. Code of 1935, sec. 8081 (r). Affirmed as to defendant Banks McArver. Reversed as to defendant The National Weaving Company, Inc.