Goldston v. Goldston Concrete Works, Inc. , 29 N.C. App. 717 ( 1976 )

VAUGHN, Judge.

To be compensable under the Workmen’s Compensation Act an injury must be one that arises out of and in the course of the employment.

“The words ‘out of’ refer to the origin or cause of the accident and the words ‘in the course of’ to the time, place and circumstances under which it occurred . . . [t]here must be some causal relation between the employment and the injury; but if the injury is one which, after the event, may be seen to have had its origin in the employment, it need not be shown that it is one which ought to have been foreseen or expected. . . .

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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’ . . . . ” Conrad v. Foundry Company, 198 N.C. 723, 726, 727, 153 S.E. 266, 269.

Whether an injury by accident arises out of and in the course of the employment is a mixed question of law and a fact. Hardy v. Small, 246 N.C. 581, 99 S.E. 2d 862. The question before us is whether in any reasonable view of the evidence it is sufficient to support the critical findings necessary to permit an award of compensation. Keller v. Wiring Co., 259 N.C. 222, 130 S.E. 2d 342. Whether compensation is recoverable depends largely upon the facts of each case as matters of fact and conclusions of law, and general definitions are unsatisfactory. Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728.

We do not elect to review defendant’s exception to the findings of fact. It is our view that, insofar as they are material to the critical issue, the findings of the Commission represent legitimate inferences that can be drawn from the evidence when it is considered in the light most favorable to plaintiff.

Defendant, for instance, excepts to the Commission’s finding that the trailer park was not incorporated until the corporate stock was issued which was after the accident. Defendant contends that the incorporation was completed prior to the accident when the articles of incorporation were certified. We do not consider this finding critical. In either event, the evidence permits the inference that defendant Concrete Works, through the deceased and employees, performed certain services for the trailer park.

In short, the evidence, when considered in the light most favorable to plaintiff, shows the following. The employee was on his employer’s premises at a time when he could reasonably be expected to be there. He was using his employer's acetylene torch to cut the top from a barrel, an activity in which he normally engaged in the furtherance of the employer’s business. He was killed by accident while engaged in that activity. If the particular barrel on which he was working had been destined (as were the ones he had previously cut) for use at the Concrete Works, there would be no doubt about his having been killed when exposed to risk of his employment. That the barrel was to be used by a tenant at the trailer park, does not, under the circumstances of this case, alter the result. Lee v. Henderson and Associates, 17 N.C. App. 475, 195 S.E. 2d 48 ; 284 N.C. 126, 200 S.E. 2d 32.

The award of the Industrial Commission is affirmed.

Affirmed.

Judges Britt and Arnold concur.