Betty W. GANT, Widow, Lawrence S. Gant, William R. Gant, and Dennis P. Gant, Minor Sons, William P. Gant, Deceased,
v.
G. E. CROUCH and St. Paul Mercury Indemnity Company.
No. 95.
Supreme Court of North Carolina.
February 29, 1956.*706 Uzzell & DuMont, Asheville, for defendants-appellants.
J. Y. Jordan, Jr., Asheville, for plaintiffs-appellees.
HIGGINS, Justice.
The defendants contend the judgment of the Superior Court in this case should be reversed for that (1) the death of William P. Gant, the employee, was not the result *707 of injury arising out of and in the course of his employment; (2) the death of the deceased employee was occasioned by his intoxication.
Commissioner Scott, who held the initial hearings, found as a fact the employee's death was occasioned by his intoxication and made an award denying compensation. After Commissioner Scott resigned and was succeeded by Commissioner Gibbs, the plaintiff within seven days appealed to and asked for a review by the full Commission. After further hearings the full Commission reviewed Commissioner Scott's finding and by a 2-1 vote found that the employee's death was not occasioned by his intoxication and made an award allowing compensation. Chairman Huskins dissented. The defendants contend that Commissioner Scott and Chairman Huskins, who participated in the hearings, were of the opinion from the evidence that the employee's death was occasioned by his intoxication and that consequently there was no majority finding on that pivotal issue. The objection is without merit. The North Carolina Industrial Commission, created by statute, now G.S. § 97-77, is a continuing body. As a commission it acts by a majority of its qualified members at the time decision is made. A vote of two of the then members, therefore, constituted a majority of the Commission empowered to act for the Commission.
The evidence before the Commission indicated that shortly before the accident the employee was not about his employer's business but was on a private mission of his own. However, there was evidence that he had returned to his duties and was in the act of discharging them at the time of his death. The evidence is amply sufficient to support finding No. 13 of the Commission "that Gant's death was the result of an injury by accident arising out of and in the course of his employment."
In order to defeat the claim for compensation, however, the defendants sought to prove that death of the employee was occasioned by his intoxication. The burden of proof was on the defendants. G.S. § 97-12. There was evidence before the Commission that the pickup truck Gant was driving was forced off a very narrow mountain road by other vehicular traffic; that the shoulder of the road gave way, causing the vehicle to turn over and roll approximately 90 feet down the mountainside, killing Gant instantly. There was evidence from defendants' witness that Gant and his two companions had consumed about one-half pint of whiskey during a period of about four hours. There was evidence from one of defendants' witnesses that she and Oliver Paine had been with Gant from about noon, at which time they took one drink each, until the accident about 4:30; that Gant took another drink before they got to Soco Gap (time not given), and at Soco Gap he drank one bottle of beer. The witness further testified that Gant ate his lunch about 3:30 or 4:00 o'clock; that he had nothing to drink after that time. There was evidence the witness had made contradictory statements about the amount of liquor consumed. However, in the opinion of the Commission the defendants did not carry the burden of showing death was occasioned by the intoxication of the employee. As was said by this Court in the case of Brooks v. Carolina Rim & Wheel Co., 213 N.C. 518, 196 S.E. 835, 836:
"There was competent evidence to support the contention of both plaintiff and defendants upon this question, but, the commission having found as a fact that the accident in which the plaintiff was injured was not occasioned by his intoxication, the judge of the superior court was bound by such finding, and we are likewise so bound. Morgan v. [Cleveland] Cloth Mills, 207 N.C. 317, 177 S.E. 165; West v. [East Coast] Fertilizer Co., 201 N.C. 556, 160 S.E. 765; Southern v. [Morehead] Cotton Mills Co., 200 N.C. 165, 156 S.E. 861."
The defendants objected to the finding made by the Superior Court and to the court's order based thereon as follows:
*708 "It having been found by the court that the appeal in this case was brought by the insurer, it is further ordered, adjudged and decreed that the costs in this action to be paid by the defendants herein shall include a reasonable attorney's fees to John Y. Jordon, Jr., attorney for the plaintiffs, the amount of said fee to be determined by the North Carolina Industrial Commission."
The defendants state as the ground of their objection: "No evidence in connection with this point was adduced in the hearing in the Superior Court and the finding of the court would thus appear to be improper." The notice of appeal to the Superior Court and the exceptions which the defendants filed in the Superior Court of Buncombe County carry the following recital: "G. E. Crouch, employer, and St. Paul Mercury Indemnity Company, carrier, except to the award and opinion of the North Carolina Industrial Commission dated January 11, 1955, and hereby give notice of appeal to the Superior Court of Buncombe County, * * *." The Superior Court, therefore, had before it the defendants' statement showing the defendants appealed. The statement supports the finding.
The finding of fact and order for attorney's fees are authorized by G.S. § 97-88. Brooks v. Carolina Rim & Wheel Co., supra; Williams v. Thompson, 203 N.C. 717, 166 S.E. 906.
The judgment of the Superior Court of Buncombe County is without error of law and the same is
Affirmed.