On tbe facts alleged in tbe complaint, is plaintiff's demand witbin tbe exclusive jurisdiction of tbe Industrial Commission under tbe terms of tbe Workmen’s Compensation Act, and ber right to maintain an action under C. S., 160, for tbe wrongful death of ber intestate defeated?
It would seem tbat tbe answer should be in tbe negative unless tbe facts alleged, or reasonable inferences from them, show that-tbe relation of master and servant existed between tbe parties, at tbe time, and with respect to tbe transaction resulting in tbe injury and death; or, in other-words, tbat tbe negligence causing tbe death was incident to tbe employment. Tbat, simply stated, is the position of tbe plaintiff. She contends tbat tbe complaint, in its factual statements, negatives these essential conditions of jurisdiction under tbe Act. Tbe position of tbe defendants is expressed in their brief as follows :
“Tbe statute, broad and comprehensive in its terms, excludes all remedies other than through tbe Industrial Commission, whether plaintiff be invitee or licensee; whether be be on tbe job, or off tbe job; whether tbe accident arises out of employment, or independently of employment. All common law remedies of an employee are merged into tbe remedy under tbe Act, and if tbe plaintiff chose not to proceed in tbe forum provided for ber, she is out of court.”
Carried to its logical extreme, this would confer immunity from liability upon an employer who inflicts a negligent injury on an employee while tbe latter is not engaged in any activity of bis employment and is far from tbe scene of bis duties, while be is on tbe way to tbe grocer or to church, or wherever be has tbe right to be in tbe pursuit of bis own affairs. Tbe contention is too sweeping to merit serious attention except for tbe fact tbat counsel for defense cite certain decisions of this Court which have been recognized as having tbat significance. Pilley v. Cotton Mills, 201 N. C., 426, 160 S. E., 479; Francis v. Wood Turning Co., 208 N. C., 517, 181 S. E., 628. We will examine these cases later.
Tbe major argument here, on both sides, was addressed to this issue, and it constitutes almost tbe entire subject matter of tbe briefs. Tbe condition in which tbe subject is left in tbe Pilley and Francis cases, supra, demands attention to tbat phase of tbe legal controversy, however obvious tbe principles governing tbe jurisdiction may now appear.
“The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, as against his employer at common law or otherwise, on account of such injury, loss of service, or death." Public Laws of 1929, chapter 120, section 11; Michie’s Code, 1939, sec. 8081 (r).
The incidence of the law is on the status created by the contract of employment. It deals with the incidents and risks of that employment, in which coneededly is included the negligence of the employer in that relation. It has no application outside the field of industrial accident; and does not intend, by its general terms, to take away common law or other rights which pertain to the parties only as members of the general public, disconnected with the employment. “The relation of master and servant and their mutual rights and liabilities is the primary concern of the compensation acts. Unless the relationship of employer and employee exists, the acts have no bearing on a claim for personal injury damages.” Schneider, Vol. 1, p. 3, sec. 2. Expressions in sec. 11 regarding the surrender of the right to maintain common law or statutory actions against the employer are not absolute — not words of universal import, making no contact with time, place or circumstance. They must be construed within the framework of the Act, and as qualified by its subject and purposes.
The primary purpose of legislation of this kind is to compel industry to take care of its own wreckage. It is said to be acceptable to both employer and employee, because it reduces the cost of settlement and avoids delay. To the employee, it means a certainty of some sort of compensation for an injury received in the course of business; and to the employer, it reduces unpredictability of loss and puts it on an actuarial basis, permitting it to be treated as “overhead,” absorbed in the sales price, and thus transferred to that universal beast of economic burden, the consumer. Allen v. State, 160 N. Y. Supp., 85; Village of Kiel v. Industrial Commission (Vis.), 158 N. W., 68. It is said to be humanitarian and economical as opposed to wasteful in the conduct of the enterprise, and is referred to the propriety of keeping loss by accident incidental to employment chargeable to the industry where it occurs. Kem nerson v. Thomas Towboat Co., 89 Oonn., 367, 94 A., 372. It is called “an economic system of trade risk.” “Losses incident to industrial pursuits are like wrongs and breakage of machinery — a cost of production.” Machín v. Detroit-Limlcen Axle Co., 187 Mich., 8,153 N. W., 49; Village of Kiel v. Industrial Commission, supra. It should be charged against
The Industrial Commission is not a court of general jurisdiction. It can have no implied jurisdiction beyond the presumption that it is clothed with power to perform the duties required of it by the law entrusted to it for administration. As is often the ease in legislation of this type, the more definitive expressions of jurisdiction are found in the procedural features of the law. See sec. 1, subsection (f), Michie’s Code of 1939, see. 8081 (i) (f). In most jurisdictions having provisions in the law comparable to sec. 11 — many of them are identical- — the courts have felt constrained to construe the law as exclusive only with respect to injuries for which compensation is provided and not to exclude common law actions where no such provision is made. Barrencotto v. Cocker Saw Co., 266 N. Y., 139, 194 N. E., 61; Boyer v. Crescent Payer Box Factory. 143 La., 368, 78 So., 596; Donnely v. Minneapolis Mfg. Co., 161 Minn., 240, 201 N. W., 305; Triff v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131, overruling Zajachuck v. Willard Storage Battery Co., 106 Ohio St., 538, 140 N. E., 405, and Mobley & C. Co. v. Lee, 129 Ohio St., 69, 193 N. E., 745, 100 A. L. R., 511; Covington v. Berkeley Granite Corp., 182 Ga., 235, 184 S. E., 871. See annotations 100 A. L. R., 519, and 121 A. L. R., 1143. Our Court has not observed this rule; but dealing with certain unscheduled occupational diseases, has held common law actions to be excluded, although the Act makes no provision for compensation. Lee v. American Enka Corporation, 212 N. C., 455, 193 S. E., 809; Murphy v. American Enka Corporation, 213 N. C., 218, 195 S. E., 536. But in these cases the condition admittedly and allegedly arose out of the employment. The cases do not support defendants’ contention.
In Francis v. Wood Turning Co., 208 N. C., 517, 181 S. E., 628, upon which the defendants mainly rely, the decision, as the opinion states, “is affirmed on the authority of Pilley v. Cotton Mills (201 N. C., 426, 160 S. E., 479),” and it is said that the facts in that case are identical “in the instant case.” But the two cases are similar only in legal history— in the fact that before a common law action was resorted to, the claims were presented to the Industrial Commission, compensation denied, and no appeal taken. In fact, as we shall presently see, there was one appeal taken after compensation was denied in the Francis case, supra, but the facts in these cases are far from identical.
The facts in the Pilley case, supra, are not stated in the report. They may be found in I. C. File 22050, Docket No. 43. Billey fell while on duty and in the course of his employment as a watchman in defendant’s
The controversy in-the Francis case, supra, came here on appeal twice — Francis v. Wood Turning Co., 204 N. C., 701, and Francis v. Wood Turning Co., 208 N. C., 517, supra. Too tedious to repeat here, the history of the case and factual background not found in the later report may be gotten from the first and fuller report in 204 N. C., 701, et seq.
It is sufficient to say that the case came here on plaintiff’s appeal from a judgment in the court below sustaining a demurrer grounded on the fact that jurisdiction had been sustained on conflicting evidence theretofore, and the law as laid down in the former appeal had become the law of the case; and the further plea that, as plaintiff had resorted to the Industrial Commission and had not appealed from an adverse decision, under the judgment of that tribunal the matter was res judicata (Records and Briefs, Fall Term, 1935, 20, No. 17). Upon the facts and procedural history of the ease, the result reached in the Francis case, supra. might be sustained. In neither the Pilley case, supra, nor the Francis case, supra, was the question presented here discussed. The opinions, seated alone upon the facts reported, are too broad in their implications.
II. Under the realistic view our Court has always taken of the contract of employment, we cannot hold that the master-servant relation is evoked by the social gesture when the employee attends a good will picnic at the invitation of the employer. There are cases guardedly so holding under the circumstances of the particular case, it is true. Stakonis v. United Advertising Corp., 110 Conn., 384, 148 A., 334; Conklin v. Kansas City Public Serv. Co., 226 Mo. Ap., 309, 41 S. E. (2d), 608; Sinclair v. Wallach Laundry, 228 N. Y. S., 686. In other cases it has been denied: F. Becker Asphaltum Roofing Co. v. Industrial Gommission, 333 Ill., 340, 164 N. E., 668; Maeda v. Department of Labor and Industry, 192 Wash., 87, 72 P. (2d), 1034. In the Stakonis case, supra, it was noted that the employee was under direct order to attend the picnic, with a penalty for disobedience if he did not; but by dictum it is said that where there is a mere invitation to enjoy the hospitality of the employer, there would be no direct relation between the outing and the employment. Furthermore, some weight is given to the fact
In Hildebrand v. McDowell Furniture Co., 212 N. C., 100, 193 S. E., 294, the employee was killed while returning on Sunday from a furniture exposition which he had attended with the superintendent of the factory merely for the pleasure of the trip, and did not work for his employer while on the trip. In that case, defining an accident arising in the course of the employment, the Court repeats the definition found in Conrad v. Foundry Co., 198 N. C., 723, 725, as 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”; and finds that the phrase out of and in the course of employment “embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the master’s business.” But compensation was denied on the ground that the activity of the employee had no relation to any duty he owed the master and did not tend to further his business. The Court said: “He did not work for his employer on the trip, and he was not compelled to go.”
In Perdue v. Board of Equalization, 205 N. C., 730, 172 S. E., 396, this Court affirmed an award made to the dependents of a teacher in the graded schools at Statesville, who was killed while coaching at a football game away from the school in which he was employed. And in Callihan v. Board of Education, 222 N. C., 381, the Court affirmed an award made by the Industrial Commission to a teacher of vocational subjects in the public schools, who at the time of his injury was on the way to attend a monthly meeting of others engaged in like work. However, in each of these cases the evidence was sufficient to connect the activities definitely with the contract of employment.
In each case where compensation was denied, it was on the principle that the facts upon which it was claimed had no connection with the employment and, therefore, the master-servant relation which is necessary to the application of the Workmen’s Compensation Act is absent. To this relation alone, is compensability an incident?
The outing sponsored by the employers in the case at bar occurred on Sunday — (see Ridout v. Bose’s Stores, Inc., 205 N. C., 423, 171 S. E., 642) — the employee was not paid for attendance, nor penalized for nonattendance, nor ordered to go, but was merely invited. He did no work and there is no suggestion that on this occasion he was under the control and direction of the employer in any respect. He owed no duty to the
The amendment made by ch. 449, Public Laws of 1933, found in Michie’s Code of 1939 as Sec. 8081 (if) (b), does not require the plaintiff to file her claim with the Industrial Commission, as a court of first instance, before bringing her action in the Superior Court. The section was intended to defer the time in which action in the proper court might be brought when mistaken resort to the Commission has been made. Such other implications as it may have are not favorable to the defendants on the question of exclusiveness of the jurisdiction.
We have nothing to do with whether the plaintiff can recover in her present action. We only say that the facts of the case as alleged in the complaint do not bring it within the jurisdiction of the Industrial Commission.
The judgment of the court below dismissing plaintiff’s action is
Eeversed.