Davis v. North State Veneer Corp.

BeogdeN, J. Was tbe death of plaintiff occasioned “by accident arising out of and in tbe course of tbe employment?” “In order tbat compensation may be due the injury must arise out of and also be received in tbe course of the employment — neither alone is enough. It is not easy ... to give comprehensive definition of these words ... an injury is received, in tbe course of tbe employment when it comes while tbe workman is doing tbe duty which be is employed to perform. It ‘arises out of tbe employment’ when there is . . : a causal connection between tbe conditions under which tbe • work is required to be done and the resulting injury. ... If the injury can be seen ... to have been contemplated by a reasonable person familiar with tbe whole situation . . . then it ‘arises out of tbe employment.’ The causative danger must be peculiar to tbe work and not common to the neighborhood.” Chief Justice Rigg in McNicol's case, 102 N. E., 697, N. C. Industrial Commission Report, 131. Similar definition occurs in tbe ease of Wirta v. North Butte Mining Co., 210 Pac., 332, 30 A. L. R., 964, in these words: “Tbe words ‘in tbe course of an employment’ refer to tbe time, place, and circumstances under *266 which the accident took place, and an accident arises ‘in the course of the employment’ i£ it occurs while the employee is doing the duty which he is employed to perform.” This Court in Conrad v. Foundry Co., 198 N. C., 723, 153 S. E., 266, adopted the following definition: “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.’ ” See, also, Harden v. Furniture Co., 199 N. C., 733; Phifer v. Foremost Dairy, ante, 65. See, also, Annotation 6 A. L. R., 1247; 30 A. L. R., 972. The deceased employee was a laborer at the veneer plant of defendant. The record does not disclose the specific nature of his duties, but he worked on the day-shift and his day’s work came to an end at 5 :34. The record does not disclose that he was working at the drykiln or during working hours charged with any duty with respect to the engine or the machinery in the plant. His time card showed a punch at 9 :32 at night, indicating that the deceased employee was expecting to receive pay for his services in making the trip to the home of the foreman in order to notify him that the engine had broken down and would not run. There was no request made by any person in authority, or even by a fellow employee that the deceased should make the journey to the home of the foreman. At the time of his injury he was some distance beyond the home of the foreman. Under the facts set out in the record it is manifest that the injury did not occur during working time or at the place where the employee was assigned to work, nor did the injury occur in the performance of any duty incidental to the work assigned by the employer. Upon these facts and circumstances, we are of the opinion that the plaintiff is not entitled to recover. It is suggested in many eases that an employee should be allowed to recover where he was performing some act in an emergency involving the safety of life or limb of a fellow employee or other person about the premises, and even when endeavoring to protect and safeguard the property of the employer. Many of the emergency cases are annotated in 30 A. L. R., sufra. An examination of these cases will disclose that emergencies have been interpreted as unforeseen events happening in and about the premises which threaten or menace life, limb, or destruction of property. These cases cover the field of injuries resulting from fires, riots, explosions, di’owning, shooting and other events portending immediate peril and foreboding serious injury or destruction. The breakdown of a piece of machinery or its failure to function could *267 not be reasonably classified as an emergency. Certainly any sort of machinery trouble would entail some degree of loss upon the employer. The claimant relies upon Grieb v. Hammerle, 118 N. E., 805, 7 A. L. R., 1075. The Court said: “The argument is made that the injury did not arise out of or in the course of the servant’s employment. I think that is too narrow a view. If Grieb had been injured during working hours, it would make no difference that his service was gratuitous. If the service was incidental to the employer’s business and was rendered at the employer’s request, it would be part of the employment within the meaning of this statute. Any other ruling would discourage helpful loyalty. . . . Pro hac niGe, by force of custom or request, the employment is enlarged.” In the Grieb case the injured employee was requested by the employer to deliver certain boxes of cigars to a customer, and in attempting to make the delivery he fell down stairs and was killed. An analysis of the case will disclose that the recovery was based upon the request of the employer to deliver the cigars. In the ease at bar there was no request and no evidence of custom. It is true that there was evidence that the deceasd employee had notified the foreman of the brakedown on one or two previous occasions. A witness testified: “All I remember is him going once before, something like that, may be twice.” In order to impose' liability by virtue of custom the character of proof must be clear and convincing as to the antiquity, duration, and universality of the usage in the locality where it is claimed to exist. Penland v. Ingle, 138 N. C., 457, 50 S. E., 850; Crown Co. v. Jones, 196 N. C., 208, 145 S. E., 5. [Reversed.