Rosser v. Wagon Wheel, Inc. , 19 N.C. App. 507 ( 1973 )

VAUGHN, Judge.

Defendant contends that the evidence does not support the findings and conclusions of the Commission and that the Commission erred in fáiling to find that the death of the employee was occasioned by his intoxication.

Plaintiff offered evidence tending to show the following. The deceased employee, Rosser, and his father each owned one-half of the stock in Wagon Wheel, Inc. Rosser was general manager. He was required to spend a considerable part of his time in the parking lot keeping order, regulating parking and generally observing the business. Rosser had been in the parking lot from about 11:30 p.m. until shortly before he was .fatally shot. During most of that time he had been seated in his automobile talking with his former wife, Brenda Rosser, who was also an employee of defendant. A fifteen-year-old customer named Billy Ingram and another friend and customer Van Stanley were also in the automobile during a part of the time. Earlier Stanley and another youth had had an argument on the premises which was terminated when Rosser told the other youth to leave. Brenda Rosser left the. automobile because business began to pick up. She testified that she observed Officer John Chambers drive onto the premises, circle the restaurant and park; that she then saw him, nightstick in hand, walk over to a group of boys who were eating. She had just waited on these boys. She could not hear what was said to the boys. Her testimony continued :

“. . . When Mr. Chambers turned away, the boys started to leave. After he got rid of the boys he walked back to his car.

I could see from inside the Wagon Wheel and then all of a sudden he got back out and started toward my husband’s car and so that is when I started coming outside the Wagon Wheel itself, the grill. I went out the back door. Mr. Chambers was walking from the north side of the walkway of. the grill to the south side. As John Chambers was approaching my husband’s car, he was getting out. I was watching from inside the Wagon Wheel when John Chambers was walking toward my husband’s car and about the time they- met I was already outside and they were in the center of the south driveway. They were about fifteen feet from the street. John Chambers was raising a stick at my husband’s head. He had the stick in his left hand and Gerald grabbed the stick with his right hand. John Chambers told Gerald Rosser if he didn’t turn loose the stick he was going to maul his brains out. Gerald said, T don’t appreciate you coming here and running my customers off.’ Said, T think you better get somebody,’ and Mr. Chambers said he didn’t have to and to turn loose of the stick or he was going to maul his brains out.

As a result of what my husband said, I got somebody to call Mr. Benner, the Chief of Police of Carthage, North Carolina. Steve Childers went to get Chief Benner. I turned around and told Steve to call Mr. Benner and John Chambers told my husband that he was not going. He said he was not going to wake Chief Benner, that he was in uniform and he had authority to run the boys off and he was going to give Gerald one more chance to turn loose of the . stick. My husband wasn’t doing anything except telling John Chambers to leave. He was not jerking the stick. They were standing still. John Chambers said, ‘Now, you turn loose of this stick or I’m going -to blow your brains out.’ John Chambers raised the gun to Gerald and shot him. He drew the gun from his right side and he just point it at him. He shot Mr. Rosser in the heart.”

The testimony of Van Stanley and Billy Ingram, though varying as to. some- of the details, tended to corroborate that of Brenda Rosser, including hér testimony to the effect that the deceased was not intoxicated.

Defendant offered evidence tending to show: that Chambers was employed through the Community Action Program, had worked for the Carthage Police Department for about five weeks and had no prior police training or experience; that he was being paid by New Careers, Incorporated; that Chambers did not interfere with customers of the drive-in; that the drive-in appeared to be closed and that Chambers spoke to several young boys who were near the premises because he did not want a curfew violation. Defendant offered other evidence tending to show that Rosser was the aggressor in the encounter with Chambers and that Chambers’ pistol was accidentally discharged when Rosser slappied him. ■, Defendant offered evidence tending to show that Rosser was intoxicated, including testimony that a sample of Rosser’s blood disclosed an alcoholic content of .14 percent.

It is well settled that the Commission’s findings of fact are conclusive on appeal if supported by any competent evidence even though there is evidence to support contrary findings. The Commission is the judge of the credibility of the witnesses and the weight to be given the evidence. It is obvious that the Commission saw fit to believe the evidence which was favorable to plaintiff. When this evidence is taken as true it supports the findings of fact and conclusions of the Commission.

Affirmed.

Judges Britt and Hedrick concur.