Colvin v. E. I. Du Pont De Nemours Co., 17030

• Citation: 88 S.E.2d 581,227 S.C. 465
• Decision Date: 13 July 1955
• Docket Number: No. 17030,17030
• Parties: Curtis COLVIN, Respondent, v. E. I. DU PONT DE NEMOURS COMPANY et al., Appellants.
• Court: United States State Supreme Court of South Carolina

Page 581

88 S.E.2d 581

227 S.C. 465

Curtis COLVIN, Respondent, v. E. I. DU PONT DE NEMOURS COMPANY et al., Appellants.

No. 17030.

Supreme Court of South Carolina.

July 13, 1955.

Whaley & McCutchen, Hoover C. Blanton, Columbia, for appellants.

Brown, Jefferies & Mazursky, Barnwell, for respondent.

STUKES, Justice.

Respondent, who is of limited education and unskilled, was employed as a messenger. He was formerly physically sound and was examined by the medical department of the employer before his last employment. He testified that on May 13, 1953, while at work carrying a load of mail from one building to another he had to pass through heavy, double, fire-protection doors which were kept closed by hydraulic pressure. He said that he pushed one door open and, quoting from his testimony, 'then when I retch and I got the other door, I pushed. That's when it happened. See I thought--just like a knife jobbing there and I thought I'd had a heart attack.' He further testified that he strained; was in a hurry and 'shoved pretty hard to get in the door.'

Opposing counsel differ as to the meaning of the unusual word 'retch'. For claimant it is contended that it was intended for 'strained.' Webster includes in the definitions of the word, quoting, 'to reach; extend stretch, expand,' which is said to be dialect and obsolete. Merriam's Unabridged Edition, 1939. It is apparent from the immediate context and from claimant's other testimony that he meant to say that he stretched and strained in order to push open the second heavy door, in which he was handicapped by the employment of one of his arms in the carrying of his burden.

Claimant delivered the mail in the building which he was entering and then in about fifteen minutes, still suffering, he went to the employer's medical building where first aid facilities were maintained. He and the nurse on duty thought that his pain was caused by gas, for which he was given medicine. He tried to continue at work but soon had to go back to the first aid station and was sent to a doctor who examined him with X-ray, determined that he had a collapsed lung and referred him to his family physician for hospitalization. He went at once to his private physician who placed him in a hospital where he remained for fifteen days and afterward at home about the same time. Then he returned to his employment and was put on light duty with the requirement that he should not lift more in weight than fifteen pounds. Formerly in that employment he had lifted up to one hundred pounds. About six months later the employment was terminated by the employer, since which claimant has not worked. The lift load limitation was put upon him by the medical department of his employer. He testified that he is a common laborer, fitted only for manual labor which it is impossible for him to perform in his present condition.

The Industrial Commission awarded claimant workmen's compensation for permanent, total disability which was affirmed by the court. The employer and its insurance carrier have appealed upon the grounds that there was no injury by accident which arose out of and in the course of the employment, and that claimant is not totally and permanently disabled.

Whether there was an accident within the terms of the Compensation Act, Code 1952, § 72-1 et seq., is a question of fact for determination by the Commission, and its conclusion will not be reversed by the court if there was any competent evidence to sustain it. Enough of claimant's undisputed testimony concerning the circumstances of his injury has been stated to raise an inference of injury by accident. His medical witnesses gave as their opinions that the collapse of the lung resulted from the strain which claimant described.

In Hiers v. Brunson Construction Co., 221 S.C. 212, 70 S.E.2d 211, 220, in which award of compensation for death resulting from work-occasioned exposure to the elements was affirmed, the following was quoted with approval from 58 Am.Jur. 704, Workmen's Compensation, Sec. 195: "The term 'injury' as used in the phrases 'personal injury or death accidentally sustained', 'injury by accident', 'injury proximately caused by accident', and similar expressions, has been construed to mean not only an injury the means or cause of which is an accident, but also an injury which is itself an accident; that is, an injury occurring unexpectedly from the operation of internal or subjective conditions, without the prior occurrence of any external event of an accidental character. As stated in some cases, an injury, to be accidental, need not have been created by wound or external violence." To that may be added from Sec. 196 of the same text, which further defines the term 'accident': 'It is generally construed as meaning an occurrence which is neither expected, designed, nor intentionally caused by the workman * * *. It has been stated that an injury is unexpected, so as to bring it within the category of 'accident' * * * if the workman did not intend or expect that it would result on the particular occasion from what he was doing.'

It was also said in the Hiers case that in the majority of jurisdictions no slip, fall or other fortuitous event or accident in (as?) the cause of the injury is required; the unexpected result or industrial injury is itself considered the compensable accident, citing 4 Schneider's Workmen's Compensation, Perm.Ed., 385, and footnote.

Also pertinent her, as it was in the Hiers case, is Layton v. Hammond-Brown-Jennings Co., 190 S.C. 425, 3 S.E.2d 492, 495. It upheld an award of compensation for disability from hernia which resulted from lifting by claimant in moving laundry heaters which weighed about 60 pounds. The following is quoted from the opinion: 'When respondent's injury occurred he was lifting a heater off the pile or stack of heaters just like he had lifted the others--in the usual manner. He did not strike himself in any way, He did not slip, his foot did not slip and he did not stumble nor fall. There was no untoward happening. He was not conscious of any strain. However, from the circumstances related, it is a reasonable inference that there was a strain.' It was held that the words 'by accident', and 'an accident,' as used in our Compensation Act, and the words 'accidental means,' as used in insurance policies, are synonymous; and the following was quoted with approval from Goethe v. New York Life Ins. Co., 183 S.C. 199, 217 190 S.E. 451, 458:

"The rule clearly deducible from the overwhelming weight of authority is that, when injury or death follows or results from a voluntary act of the insured, and the act is one which is not manifestly dangerous, but which is ordinarily done or performed without serious consequences to the doer, such result is caused by accidental means. This is nowhere better stated than by Sanborn, J., in Western Commercial Travelers' Ass'n v. Smith, 85 F. 401, 405, 29 C.C.A. 223, 56 U.S.App. 393, 40 L.R.A. 653, where he says: 'An effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and * * * cannot be charged with the design of producing, * * * is produced by accidental means."'

In Cole's Next of Kin v. Anderson Cotton Mills, 191 S.C. 458, 4 S.E.2d 908, award was sustained for injury within claimant's shoulder which came while he was engaged in his usual employment in tightening nuts with a wrench and he was afterward found to be suffering from osteomyelitis. He was operated on, developed pneumonia and died. Similarly in Young v. Sonoco Products Co., 210 S.C. 146, 41 S.E.2d 860, internal effect occurred in claimant's elbow while she was engaged in her usual work, and award of compensation for resulting disability was affirmed.

Appellants cite Burnett v. Appleton Co., 208 S.C. 53, 37 S.E.2d 269; Fleming v. Appleton Co., 214 S.C. 81, 51 S.E.2d 363; Miller v. Springs Cotton Mills, 225 S.C 326, 82 S.E.2d 458; and Price v. B. F. Shaw Co., 224 S.C. 89, 77 S.E.2d 491, which will be briefly, but we think satisfactorily, differentiated from the instant case.

In the Burnett case the Industrial Commission, the fact-finding body, found that there was no accident which was affimred because there was competent evidence to sustain the conclusion. In Fleming's case claimant's disability was found to have resulted, according to the uncontradicted medical testimony, from a neurosis or mental condition which was not related to the work. In the Miller case claimant was rising from her seat in the cafeteria of her employer, where she had eaten, when an internal failure of the function of her knee caused her to almost fall. It was concluded under the evidence that the internal failure of claimant's knee caused her near-fall rather than that the near-fall caused the injury to her knee. The Price case was a claim for compensation for death which resulted from a heart attack which was suffered by the deceased while at his usual work. By divided opinions the court held that in heart cases, to be compensable, the attack must have been induced by unusual strain or exertion at work; moreover, there was proof that the workman had long suffered from heart disease, which distinguishes that case from this; here claimant had no...