Taylor v. Town of Wake Forest

WiNBORNE, J. The appeal as it comes to us presents this question: Is the evidence shown in .the record on this appeal sufficient to support a finding that the death of John L. Taylor resulted from injury by accident arising out of and in the course of his employment by the Town of Wake Forest, within the meaning of the North Carolina Workmen’s Compensation Act? The answer is “No.” Under the North Carolina Workmen’s Compensation Act, Public Laws 1929, Chapter 120, as amended, now Chapter 97 of the General Statutes, the condition antecedent to compensation is the occurrence of any injury (1) by accident (2) arising out of and (3) in the course of employment. *350 Conrad v. Foundry Co., 198 N. C., 723, 153 S. E., 266; Whitley v. Highway Com., 201 N. C., 539, 160 S. E., 827; Beavers v. Power Co., 205 N. C., 34, 169 S. E., 825; Plemmons v. White’s Service, Inc., 213 N. C., 148, 195 S. E., 370; Lockey v. Cohen, Goldman & Co., 213 N. C., 356, 196 S. E., 312; Wilson v. Mooresville, 222 N. C., 283, 22 S. E. (2d), 907. Tie words “out of” refer to tie origin or cause of tie accident, and tie words “in tie course of” to tie time, place and circumstances under wiiciit occurred. Conrad v. Foundry Co., supra. Harden v. Furniture Co., 199 N. C., 733, 155 S. E., 728; Hunt v. State, 201 N. C., 707, 161 S. E., 203; Ridout v. Rose’s Stores, Inc., 205 N. C., 423, 17 S. E. (2d), 642; Plemmons v. White’s Service, Inc., supra; Lockey v. Cohen, Goldman & Co., supra; Wilson v. Mooresville, supra. It ias been said tiat tie term “arising out of employment” is broad and comprehensive and perhaps not capable of precise definition. It must be interpreted in tie light of tie facts and circumstances of each case, and there must be some causal connection between the injury and the employment. Chambers v. Oil Co., 199 N. C., 28, 153 S. E., 594; Harden v. Furniture Co., supra; Canter v. Board of Education, 201 N. C., 836, 160 S. E., 924; Walker v. Wilkins, Inc., 212 N. C., 627, 194 S. E., 89; Plemmons v. White’s Service, Inc., supra; Wilson v. Mooresville, supra. “Arising out of,” as said by Adams, J., in Hunt v. State, supra, “means arising out of the work the employee is to do or out of the service he is to perform. Tie risk must be incidental to the employment.” Harden v. Furniture Co., supra; Chambers v. Oil Co., supra; Beavers v. Power Co., supra; Bain v. Mfg. Co., 203 N. C., 466, 166 S. E., 301; Plemmons v. White’s Service, Inc., supra; Wilson v. Mooresville, supra. In tie light of these principles, what services was Join L. Taylor to perform, and what work was he to do under his employment by the Town of Wake Forest? The uncontradicted evidence is: (1) That Taylor “was already a township constable,” and the mayor acting under authority from the Board of Commissioners of the Town of Wake Forest, asked him “if he would serve in this capacity as a special officer to be in the business section at nights and on week-ends to help keep order”; (2) that the business section of the town was “about three or four blocks long”; (3) that Taylor was engaged in the plumbing business, and he would not accept any police employment that would interfere with his work; (4) that after he had finished his business, and had his supper, 8 or 9 o’clock, he would come on duty and stay until 11:30 or 12 o’clock; but if his business interfered, and he came on duty later, it would be all right with the Town; (5) that “his services were limited to the business section”; and though he was not demanding any salary for his services, the Town agreed to pay him $20 a week; (6) that he took no oath of office as a *351 special policeman or as a town officer; “be was already qualified as a constable to do tbe work in tbe rest of tbe township”; be wore no uniform, and bis employment by tbe Town of Wake Forest was kept a secret; (7) that tbe night policeman Knuckles, wbo did not know Taylor was in tbe employ of tbe Town, but did know that be was a constable, sought Taylor to go with him when tbe call came between 7 and 8 o’clock on 30 May, 1944, for an officer to come outside of tbe town limits; this was, and bad been for tbe three or four years Taylor was a constable tbe usual custom of tbe policeman when be bad a call and could not get another police officer; on this night Taylor was at work “doing some plumbing” at a cafe on tbe main street in tbe town; and (8) tbe place to which tbe night policeman was called and to which Taylor went with him, was more than a mile outside tbe town limits. Tbe evidence clearly shows that tbe Town of Wake Forest sought tbe services of Taylor in bis capacity as a township constable, and engaged him to do specific work within tbe limits of a certain territory and during certain hours. Tbe evidence also shows clearly that tbe mortal injury which Taylor received did not occur in tbe performance of tbe specific work be was engaged to do within tbe limits of tbe territory to which bis employment by tbe Town of Wake Forest related. It may be noted that in each township in this State a constable shall be elected by tbe voters thereof. Gr. S., 151-1, N. C. Const., Art. 4, Sec. 24; that all constables, before they shall be qualified, shall take oaths prescribed for public officers as well as an oath of office, Gr. S., 151-2; and that “constables are . . . invested with and may execute tbe same power and authority as they have been by law heretofore vested with, and have executed.” Gr. S., 151-7. And this Court has held tbe powers and duties of constables are co-extensive with the limits of tbe county within which they are elected. See S. v. Corpening, 207 N.C., 805, 178 S. E., 564, where tbe case of Dade v. Morris, 7 N. C., 146, decided in 1819, is cited for statement of tbe law prior to our constitutional and statutory provisions. See also Wilson v. Mooresville, supra. Such being tbe powers an duties of a constable, to bold that since tbe Town of Wake Forest makes a special arrangement with a township constable to do a specific job in certain territory within tbe corporate limits of tbe Town, it constitutes such constable its employee wherever be may go in tbe performance of. bis duty as such in Wake County, in which tbe Town is located, would present a rather anomalous position. Hence, for reason stated hereinabove the judgment below is Eeversed.