Williams v. SALEM YARNS, ETC.

208 S.E.2d 855 (1974)

23 N.C. App. 346

James Roland WILLIAMS, Employee-Plaintiff, v. SALEM YARNS, DIVISION OF CHESTERFIELD YARN MILLS, Employer-Defendant, and The Home Indemnity Company, Carrier-Defendant.

No. 7420IC560.

Court of Appeals of North Carolina.

October 16, 1974.

*856 Boyette & Boyette by M. G. Boyette, Carthage, for plaintiff appellee.

Hedrick, McKnight, Parham, Helms, Kellam, Charlotte, for defendant appellants.

PARKER, Judge.

With respect to time, place, and circumstances, plaintiff's injuries were sustained in the course of his employment. Harless v. Flynn, 1 N.C.App. 448, 162 S.E.2d 47 (1968). The question presented is whether they also resulted from an accident arising out of his employment. We hold they did not.

An assault, although an intentional act, may be an accident within the meaning of the Compensation Act, when it is unexpected and without design on the part of the employee who suffers from it. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949). To be compensable, however, the assault must have had such a connection with the employment that it can be logically found that the nature of the employment created the risk of the attack. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972). No such connection has been shown by the evidence in the present case.

The Deputy Commissioner did make the following findings of fact which, if supported by any evidence, might serve to show some slight connection between the assault and plaintiff's employment in this case.

"He [Cheek] had a 12-gauge shotgun loaded with buckshot No. 6 in his hands when he made the shouting statement [heard by Carolyn and Sharon while they were at the parking lot]. Several other second shift employees were in the parking lot at this time."

Had this finding been supported by evidence it might be inferred that Cheek held such animus toward all employees at the mill that an assault upon one of them might be considered as arising out of his employment. The evidence, however, not only does not support the above quoted finding but directly contradicts it. The only witnesses who testified concerning these events were Carolyn, Sharon and Cheek. Carolyn testified:

"I didn't see any type of weapon that Mr. Cheek had. . . . "I guess he was shouting to everybody, me and Sharon, both of us were out there. There was no one else out there that I know of. They come up and they went in the mill. We were the only two standing out there and he was shouting at us. * * * * * * *857 "I don't know of my own knowledge whether or not that language was directed to me or to Sharon or to anyone else."

Sharon testified:

"They were a few girls that went in before we did. They weren't anybody out there whenever that happened. No other employees were coming out at that time."

Cheek denied making the threatening statements at all.

When the Deputy Commissioner's factual findings which are not supported by any evidence are eliminated, the remaining factual findings furnish no basis from which it may be logically inferred that the assault in this case had any connection with plaintiff's employment.

The award of the Industrial Commission is

Reversed.

CAMPBELL and VAUGHN, JJ., concur.