Morgan v. Cleveland Cloth Mills

Clarkson, J. Tbe following is tbe only exception and assignment of error made by tbe employer and carrier: “Tbe signing of tbe judgment sustaining findings of fact and conclusions of law of tbe North Carolina Industrial Commission.” We do not think tbis exception and assignment of error can be sustained. Tbe evidence is to tbe effect tbat tbe plaintiffs are tbe widow and children of Thomas P. Morgan, who was employed by tbe Cleveland Cloth Mills as a piece worker. Tbis breadwinner, as it was bis duty to do, went to tbe mill to report for work at 6 o’clock on tbe winter morning of 13 February, 1933. These piece workers were required to report to work at 6 o’clock every morning just tbe same as tbe employees who were working by tbe hour. W. F. Mull testified, in part: “Mr. Morgan came to tbe mill early in tbe morning and bad a conversation with me. He was at tbe window as we were going back inside tbe mill and be called to me to tbe window and asked as to whether be would get a warp tbat morning or not, so Mr. Blanton was tbe man tbat was in charge and I went to Mr. Blanton and asked Mr. Blanton about it. Mr. Blanton said be wouldn’t get a warp until about eleven or twelve o’clock and I went back to tbe window and told him what Mr. Blanton said, and Mr. Morgan said it was cold out there and be believed be would go back borne and wait.” H. H. Smith, an employee of tbe mill, testified, in part: “I found him. It was not daylight at tbe time I found him. I beard someone moaning out there and I walked out to tbe edge of tbe platform and found him lying there. He was about a foot and a half or two feet from tbe edge of tbe platform. He was lying with bis bead from tbe platform and bis feet towards tbe platform. His feet were just off tbe edge of tbe platform. It was dark out there tbat morning. There was no light on tbe platform. It was customary for a light to be out there. . . . Tbe path where be was lying come up side of tbe mill and you *322 walked from this path onto the platform. The path came up the end and this railing run out to the platform and you had to make a turn from this path to go onto the platform. He was found out at the end of the platform.” It was in evidence that Morgan was a cripple. It was a cold, freezing morning and around the edge of the platform were frozen places. The body was found inside of the mill property. It was admitted by the defendants “that the plaintiff died from a fractured skull on the same day he was found.” The question involved: Under all evidence, is there any evidence to sustain a finding of fact that deceased met his death by reason of an injury by accident arising out of and in the course of his employment ? We think so. It is contended by defendants that under this record the question is one of law, as there is no evidence in the record from which any inference can be logically drawn that deceased met his death by accident growing out of and in the course of his employment. In fact, there is no evidence that he had an accident. The Commission has found contrary to defendants’ contention, and we think there was some evidence, direct and circumstantial, to sustain its finding. It is settled by a wealth of authorities that the Industrial Commission’s findings of fact on competent evidence are conclusive. Findings of fact by member of Industrial Commission, approved by full Commission on appeal, are conclusive upon courts, when supported by any sufficient evidence. West v. East Coast Fertilizer Company, 201 N. C., 556. Superior Court may review all evidence on appeal from Industrial Commission to determine whether any evidence tends to support Commission’s findings. Wimbish v. Home Detective Co., 202 N. C., 800. In Hunt v. State, 201 N. C., 707 (709), is the following: “The words ‘out of’ as used in the act refer to the origin or cause of the accident. Whether the accident arose out of the employment is usually a mixed question of fact and law; but if the facts are found or are not in dispute and the case does not depend upon inferences of fact to be drawn from the facts admitted, the question is not one of fact, but of law. Conrad v. Foundry Co., 198 N. C., 723; Harden v. Furniture Co., 199 N. C., 733; Willis’ Workmen’s Compensation, 16.” We think the present case is similar to 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 could ride back home if the plant *323 would not run that day. He 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. He 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. ¥e think the facts of this case come within the decision of Bellamy v. Mfg. Co., 200 N. C., 676.” In McKinstry v. Guy (116 Kan., 192), 38 A. L. R., 837, it is held that “A workman who is paid wages by the piece or quantity comes within the Workmen’s Compensation Act, the same as one who is paid by the day.” The annotation on page 839, citing numerous authorities, is as follows: “It seems to be well settled in the various jurisdictions that a piece worker is an employee rather than an independent contractor, and so is entitled to the protection of a Workmen’s Compensation Act.” For the reasons given, we find no error in the judgment of the court below. Affirmed.