STACY, C. J., concurring in result.

DENNY, J., joins in concurring opinion.

BARNHILL, J., dissenting.

WINBORNE, J., concurs in dissenting opinion.

The plaintiff administratrix brought this action to recover damages for the injury and death of her intestate, Guy A. Barber; which she alleges was caused by the negligence of defendants.

The defendants were engaged in bottling and distributing soft drinks, with an office or plant at Salisbury, and Barber was employed by them in that business. Pursuant to a custom of providing an annual outing for employees and their families in the promotion of good will, the defendants, through an agent, Sloop, organized and conducted a fishing trip to South Carolina, which Barber and members of his family attended at the invitation of the defendants. Part of the trip was made by a gasoline driven boat down Little River, South Carolina, and to the fishing grounds off the coast. There, in an attempt to start the engine by priming with gasoline poured from bottles, the boat was set on fire by an explosion of gasoline vapor, and plaintiff's intestate died as a result of burns he received.

Various acts of negligence are attributed to Sloop in the complaint, including the hiring of an unsafe boat, permitting open cans and bottles of gasoline to be used, from which the air in the boat became saturated with gasoline vapor and exploded by a spark from the engine.

The defendants moved to dismiss the action upon the ground that the North Carolina Industrial Commission had exclusive jurisdiction of the controversy under the Workmen's Compensation Act, chapter 120, Public Laws of 1929, as amended by chapter 123, Public Laws of 1935, Michie's Code of 1939, sec. 8081 (h), et seq. The court below dismissed the action on that ground, and plaintiff appealed.

SEAWELL, J.

On the facts alleged in the complaint, is plaintiff's demand within the exclusive jurisdiction of the Industrial Commission under the terms of the Workmen's Compensation Act, and her right to maintain an action under C. S., 160, for the wrongful death of her intestate defeated?

It would seem that the answer should be in the negative unless the facts alleged, or reasonable inferences from them, show that the relation of master and servant existed between the parties, at the time, and with respect to the transaction resulting in the injury and death; or, in other words, that the negligence causing the death was incident to the employment. That, simply stated, is the position of the plaintiff. She contends that the complaint, in its factual statements, negatives these essential conditions of jurisdiction under the Act. The position of the defendants is expressed in their brief as follows:

"The statute, broad and comprehensive in its terms, excludes all remedies other than through the Industrial Commission, whether plaintiff be invitee or licensee; whether he be on the job, or off the job; whether the accident arises out of employment, or independently of employment. All common law remedies of an employee are merged into the remedy under the Act, and if the plaintiff chose not to proceed in the forum provided for her, 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 the latter is not engaged in any activity of his employment and is far from the scene of his duties, while he is on the way to the grocer or to church, or wherever he has the right to be in the pursuit of his own affairs. The contention is too sweeping to merit serious attention except for the fact that counsel for defense cite certain decisions of this Court which have been recognized as having that 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.

The major argument here, on both sides, was addressed to this issue, and it constitutes almost the entire subject matter of the briefs. The condition in which the subject is left in the Pilley and Francis cases, supra, demands attention to that phase of the legal controversy, however obvious the principles governing the jurisdiction may now appear.

I. Section 11 of the Act reads as follows:

"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 concededly 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 (Wis.), 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. Kennerson v. Thomas Towboat Co., 89 Conn. 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." Mackin v. Detroit-Limken Axle Co., 187 Mich. 8, 153 N.W. 49; Village of Kiel v. Industrial Commission, supra. It should be charged against the industry responsible for the injury. Klawinski v. Lake Shore N. S. Ry. Co., 185 Mich. 643, 152 N.W. 213; Schneider, Workmen's Compensation Law, Permanent Edition, s. 1.

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 case 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, sec. 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 Paper 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 Mabley 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. Pilley fell while on duty and in the course of his employment as a watchman in defendant's cotton mill, but was denied compensation because it was found that he collapsed as a result of a combination of diseases from which he had suffered for a long while. The complaint in the case brought in the Superior Court substantially states that he received his injury during the course of employment and through an accident arising out of it, and the demurrer in this Court points out the paragraph of the complaint so stating. Bound Records and Briefs, Fall Term 1931, 5, No. 172. As distinguished and resting upon that ground, the result reached in the Pilley case, supra, is correct.

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 case, 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 Commission, 333 Ill. 340, 164 N.E. 668; Maeda v. Department of Labour and Industry, 192 Wn. 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 that Stakonis was to be paid for the day's attendance. "It may fairly be said also that acting under orders of his employer, he was fulfilling one of the duties of his employment, or at least he was doing something which this defendant had annexed to the employment and made incidental to it."

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. Rose'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 employer or to other invited guests, or to the occasion itself, except that which was involved in civility and the observance of the social amenities. It seems a necessary conclusion that the Workmen's Compensation Act has no relation to the circumstances of his case.

The amendment made by ch. 449, Public Laws of 1933, found in Michie's Code of 1939 as Sec. 8081 (ff) (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

Reversed.