Faires v. McDevitt & Street Co.

• Decision Date: 11 November 1959
• Docket Number: No. 246,246
• Citation: 251 N.C. 194,110 S.E.2d 898
• Court: North Carolina Supreme Court
• Parties: J. M. FAIRES, Employee, v. McDEVITT AND STREET COMPANY, Employer; Travelers Insurance Company, Carrier.

Page 898

110 S.E.2d 898

251 N.C. 194

J. M. FAIRES, Employee, v. McDEVITT AND STREET COMPANY, Employer; Travelers Insurance

Company, Carrier.

No. 246

Supreme Court of North Carolina.

Nov. 11, 1959

Carswell & Justice and Richard E. Thigpen, Jr., Charlotte, for plaintiff-appellant.

B. Irvin Boyle and J. J. Wade, Jr., Charlotte, for defendants-appellees.

MOORE, Justice.

This appeal poses one question: Does the evidence in the record support the findings of fact of the Industrial Commission and its conclusions of law based thereon that plaintiff suffered an injury by accident arising out of and in the course of his employment, resulting in a hernia?

An employee's injury resulting in a hernia is compensable only if it be definitely proven: (1) that he received an injury arising out of and in the course of his employment, resulting in hernia; (2) that the hernia appeared suddenly; (3) that it was accompanied by pain; (4) that the hernia immediately followed an accident; and (5) that the hernia did not exist prior to the accident. G.S. § 97-2(r); Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 277, 98 S.E.2d 289; Rice v. Thomasville Chair Co., 238 N.C. 121, 123, 76 S.E.2d 311.

Appellant contends that all five requirements are proven by competent evidence appearing in the record. Appellees insist that the fourth and fifth requirements have not been shown to exist in this case.

If an employee, while performing his regular duties in the 'usual and customary manner,' receives an injury resulting in a hernia, such injury is not caused by accident and is not compensable. Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614; Hensley v. Farmers Federation Cooperative, supra.

Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, is controlling in the instant case. In the Moore case plaintiff was a foreman but was also required to do manual work in installing plumbing. On the day of his injury all workers were laid off except plaintiff and one Sykes, a helper. They were ordered to complete the job. They attempted to lift a steel pipe weighing 400 to 450 pounds. Plaintiff suffered a sharp pain in his abdomen and it was found that he had received a hernia. Prior to that time plaintiff had been doing the same general type of work but with different type of materials and had not previously lifted pipes of this type and weight. Seawell, J., speaking for this Court said in 214 N.C. at pages 429 and 430, 199 S.E. at page 608:

'In the case at bar the evidence discloses that while the operation of handling and lifting pipes was done in the ordinary manner, and even that the plaintiff had lifted pipes in that way before, two things occurred which, taken together, were out of the ordinary, and are sufficient, we think, to bring into the transaction the element of unusualness and unexpectedness from which accident might be inferred. In this particular case, by order of a superior, all other employees except plaintiff and Sykes were discharged, and these were left alone to do the heavy lifting. While Sykes had handled that type of pipe and perhaps piping of that weight before, the plaintiff had not. On the contrary, he was required to lift piping of a type and of a weight he had never before lifted, and it may be inferred from the testimony of Sykes that this was caused by the laying off of all other employees, which left them shorthanded. From the evidence, his effort to lift the pipe was immediately followed by an injury.

'In the case at bar, there is in the foregoing sufficient evidence of the interruption of the routine of work, and the introduction thereby of unusual conditions likely to result in unexpected consequences, and these were of such a character as to justify the Industrial Commission in finding that plaintiff's injury was the result of accident.'

It will be observed that the elements constituting 'accident' as set out in the Moore case were 'the interruption of the routine of work, and the introduction thereby of unusual conditions likely to result in unexpected consequences.' The same elements exist with equal definiteness in the case at bar. The work plaintiff was doing at the time he received his injury was usually done by laborers. As a carpenter he did not customarily do this type of work. On a job of this kind carpenters usually 'stripped' the forms and laborers lifted and removed them. On this occasion the other carpenters and helpers had been withdrawn from the job. Furthermore, the task plaintiff was performing in...