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Harris v. Henry's Auto Parts Inc.

Filed: May 4, 1982.

DONNIE MARIE HARRIS, WIDOW; DONNIE MARIE HARRIS, GUARDIAN AD LITEM OF KENA DENISE HARRIS AND SONYA HARRIS, DAUGHTERS OF RODNEY GEORGE HARRIS, DECEASED, PLAINTIFFS
v.
HENRY'S AUTO PARTS, INC., EMPLOYER AND NATIONWIDE MUTUAL INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by defendants from North Carolina Industrial Commission. Opinion and Award entered 7 May 1981. Heard in the Court of Appeals 31 March 1982.

Becton, Judge. Judge Wells and Judge Hill concur.

Becton

This claim for Workers' Compensation benefits arises from the following facts. Until his death, Rodney George Harris was employed by Henry's Auto Parts, Inc. as a service station attendant on the 10:00 p.m. -- 7:00 a.m. shift. His duties included collecting money from persons purchasing gasoline and selling convenience items. Harris' workplace was a keyhouse which was located within the middle of the self-service gas pump islands. The back of the property was enclosed by a six-foot fence. Adjacent to the

fence was a building which housed bathrooms, vending machines and storage places. There was a six-inch gap between the point where the roof and the fence met.

An inventory of goods was taken at 10:00 p.m. on 10 March 1979 when Harris reported for work. A customer found Harris lying in a pool of blood halfway between the keyhouse and the vending building around 11:00 p.m. An investigation later produced two rifle casings which were found in the grassy area behind the wooden fence. Harris died as a result of a bullet wound. No motive for the shooting could be gleaned from the circumstances. There was no evidence of a robbery; all of the inventory and money was accounted for. At best, the police could opine that Harris was ambushed.

The Commission awarded benefits to the deceased's widow and children. It concluded that:

On March 10, 1979, Rodney George Harris sustained an injury by accident arising out of and in the course of his employment with defendant employer resulting in his death on the same date. When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most Courts will indulge a presumption or inference that death arose out of the employment.

On this appeal, defendant contends that (1) "the record does not contain evidence sufficient to sustain the finding and conclusion of the Industrial Commission . . .;" and (2) that "in the absence of evidence sufficient to sustain a finding and conclusion by the Industrial Commission that the injury to the employee 'arose out of' the employment, a 'presumption' or 'inference' [does not] exist which is sufficient to carry plaintiff's burden of proof on that issue." We disagree.

In order for a claimant to recover Workers' Compensation benefits, he must prove that his injury was (1) by accident; (2) arising out of his employment; and (3) in the course of the employment. G.S. 97-2(6). The claimant has the burden of proving each of these elements. Henry v. Leather Co., 231 N.C. 477, 479 57 S.E.2d 760, 761 (1950). This case requires resolution of a dispute regarding only one of the elements, the "arising out of" element.

Our courts have allowed recovery to employees' families when it has been shown that the death of the employee was either related to the employment or that the employment was of the nature which would subject the employee to peril. See Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Goodwin v. Bright, 202 N.C. 481, 163 S.E. 576 (1932).

An injury is said to arise out of the employment when it occurs in the course of the employment and is a natural and probable consequence or incident of it, so that there is some causal relation between the accident and the performance of some service of the employment. [Citation omitted.] An injury arises out of the employment when it comes from the work the employee is to do, or out of the service he is to perform, or as a natural result of one of the risks of the employment ; the injury must spring from the employment or have its origin therein. [Citation omitted.] There must be some causal relation between the employment and the injury; but if the injury ...


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