Brooks v. Carolina Rim & Wheel Co.

Schenck, J. Tbis cause was beard in tbe Superior Court of Meck-lenburg on appeal by tbe defendants, employer and insurance carrier, respectively, from an award in favor of tbe plaintiff, employee, made by tbe North Carolina Industrial Commission. Tbe principal assignments of error are to tbe adoption and affirmation by tbe court of tbe findings of fact of tbe Commission tbat (1) “tbe injury by accident to tbe plaintiff on 19 August, 1936, was not occasioned by tbe intoxication of tbe plaintiff,” tbat (2) “tbe contract of employment was made in tbis State, tbat tbe employer’s place of business is in tbis State, tbat tbe plaintiff’s residence is in tbis State, and tbat be was only temporarily residing in South Carolina, and tbat bis contract of employment was not expressly for services exclusively outside of tbe State,” and tbat (3) tbe court concluded as a matter of law tbat tbe award of tbe Commission should be affirmed. Tbe evidence bearing upon tbe question as to whether tbe injury “was occasioned by tbe intoxication of tbe employee” so as to bar compensation under sec. 8081 (t), N. C. Code of 1935 (Miehie), was conflicting. Tbe plaintiff admitted tbat about four or five hours before tbe accident be bad taken a “jigger” of whiskey, but denied tbat tbe collision between bis and another automobile on tbe highway in which be suffered tbe loss of an arm was occasioned by bis intoxication. There was competent evidence to support tbe contention of both plaintiff and defendants upon tbis question, but tbe Commission having found as a fact tbat tbe accident in which tbe plaintiff was injured was not occasioned by bis intoxication, tbe judge of tbe Superior Court was bound by such finding, and we are likewise so bound. Morgan v. Cloth Mills, 207 N. C., 317; West v. Fertilizer Co., 201 N. C., 556; Southern v. Cotton Mills Co., 200 N. C., 165. *520 There was ample evidence tending to show that the contract of employment was made in this State, that the employer’s place of business was in this State, and that the plaintiff’s contract of employment was not expressly for services exclusively outside of the State, and this evidence was practically uncontradicted; but the appellants contend that the finding of the fact that the plaintiff’s residence was in this State, and that he was only temporarily residing in South Carolina, in which the accident ■occurred, was not warranted by the evidence. With this contention we cannot concur. The plaintiff testified: “On 29 August, 1936, the date of the accident, I was a salesman for the Carolina Rim & Wheel Company. I operated in eastern South Carolina. I worked out of Charlotte, which was my headquarters. On the night I was injured I was returning home from a sales meeting in Charlotte, which I had been ordered to attend. At the time of the accident I lived in Florence, S. C. My contract of employment was made in Charlotte, at which time I was living in Charlotte, but at the time I got hurt I had moved down to Florence, S. 0., temporarily. I had moved my family down there. My headquarters were in Charlotte. I was to work temporarily in Florence. My living arrangements in Florence were temporary. The purpose of the temporary living arrangement was to be near Myrtle Beach, so I could take my wife and youngster over to the beach occasionally to visit the beach, and because the highway between Monroe and Pageland was in poor condition, and the fact that I had to come here every two weeks made it a hardship to go over that highway. I made my reports in Charlotte and had a lot of things to be attended to in headquarters. I had not abandoned my residence in North Carolina. On 29 August, 1936, at about 10 :30 p.m., while returning to my home in Florence from a sales meeting in Charlotte that I had been ordered to attend, I had an accident, as a result of which I lost my arm.” In the face of this testimony “it cannot be said that there was no competent evidence to support the findings of fact assailed by the exception. These findings of fact bring the case within the provisions of the Compensation Act although the accident occurred in the State of South Carolina. N. C. Code of 1935 (Miehie), sec. 8081 (rr), reads: “Where an accident happens while the employee is employed elsewhere than in this State which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, if the contract of employment was made in this State, if the employer’s place of business is in this State, and if the residence of the employee is in this State; provided his contract of employment was not expressly for service exclusively outside of the State. . . .” The conclusion of law of the judge of the Superior Court that the award of the Commission should be affirmed is supported by the findings of fact affirmed by him. *521 The assignment of error that the Commission allowed the plaintiff’s attorneys a fee of $125.00 to be taxed in the costs cannot be sustained. Such allowance is authorized by sec. 8081 (rrr), N. C. Code of 1935 (Michie), which reads: “If the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this article, shall find that such hearing or proceedings were brought by the insurer, and the Commission or court by its decision orders the insurer to make, or to continue, payments of compensation to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings, including therein reasonable attorneys’ fees to be determined by the Commission, shall be paid by the insurer as a part of the bill of costs.” The judgment below is Affirmed. Seawell, J., took no part in the consideration or decision of this case.