Gabriel v. Town Of Newton

• Decision Date: 09 April 1947
• Docket Number: No. 311.,311.
• Citation: 227 N.C. 314,42 S.E.2d 96
• Court: North Carolina Supreme Court
• Parties: GABRIEL. v. TOWN OF NEWTON et al.

227 N.C. 314

42 S.E.2d 96

GABRIEL.

v.TOWN OF NEWTON et al.

No. 311.

Supreme Court of North Carolina.

April 9, 1947.

Appeal from Superior Court, Catawba County; H. Hoyle Sink, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Mary Gabriel, widow, claimant, opposed by the Town of Newton, employer, and the Utica Mutual Insurance Company, insurance carrier, to recover compensation for the death of Lee Gabriel, who was employed as a policeman by the Town of Newton. From a judgment affirming an award of compensation by the Industrial Commission, the employer and insurance carrier appeal.

Judgment affirmed.

This was a proceeding under the Workmen's Compensation Act for compensation for the death of Lee Gabriel alleged to have resulted from an injury by accident arising out of and in the course of his employment as a policeman by the Town of Newton.

The Industrial Commission awarded compensation upon the facts found which may be summed up as follows: Lee Gabriel, 56 years of age, had been a policeman in Newton for two years or more, and was in good health without any physical defect or disease. On the night of February 12, 1944, he was called to an industrial plant to arrest a young man under the influence of liquor. This man violently and viciously resisted, and it was only bygreat exertion and after a prolonged struggle that he was subdued sufficiently to be conveyed to jail. There Gabriel had to carry him up three flights of stairs, the elevator being out of order. In doing so Gabriel bore the weight of the head, shoulders and body of the man while an assistant held the prisoner's feet. The man weighed 160 or 170 pounds. On arriving at the top Gabriel collapsed. A physician was called in and diagnosed Gabriel's condition as acute dilatation of the heart due to excessive exertion. Gabriel remained in bed seven weeks. In April in attempting to push a lawn mower he had a similar attack, but later recovered sufficiently to do light work; in September he had another attack, and in December 1944 he collapsed on the sidewalk and died in a few minutes. In the opinion of medical experts there was a causal connection between the original instance of over-exertion, which affected the structure of his heart tissues, and his subsequent death; and that the injury to the heart muscles in February would have been an important contributing factor in the development of later attacks, including the fatal one in December 1944. It was testified that his heart was "damaged to some extent in February, and that heart damage went on with him." It was further testified that in case of acute dilatation of the heart due to exertion "the blood more or less piles up, the muscles become weakened or over-exercised and over-used; and the blood piles up in the left ventricle and stretches, and the heart itself becomes boggy and loose and does not function normally, does not aerate the blood as it should." The damage is muscle damage to the blood vessels. If the heart muscle itself was stretched, "you could have had a progressive involvement."

The Industrial Commission found that the unusual physical exertion required in making and securing the arrest under the circumstances was an unlooked for and untoward event which was not expected or designed by Gabriel, and that his death resulted from an injury by accident arising out of and in the course of his employment by the Town of Newton. Compensation was awarded. On appeal to the Superior Court, the award of the Industrial Commission was affirmed, and the defendants excepted and appealed to this Court.

Aiken, Patrick, Murphy & Harper, of Hickory, for plaintiff-appellee.

Smathers and Meekins, of Asheville, and Smathers & Smathers, of Charlotte, for defendants-appellants.

DEVIN, Justice.

The defendants' appeal presents at the outset the question whether the findings of fact upon which the award of compensation to the claimant was predicated were supported by the evidence. However, upon examination of the record and considering the evidence therein set out in the light most favorable for the claimant, we think the facts found are supported by the testimony offered, and hence must be held conclusive. Permissible inferences contra, which might be drawn from the testimony would not warrant the court in setting aside the findings of the Commission. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97; Edwards v. Piedmont Pub. Co., 227 N.C. 184, 41 S. E.2d 592.

The defendants' chief ground of attack upon the judgment below is that upon the facts found and appearing in evidence the conclusion is not warranted that the death of Lee Gabriel resulted from an injury by accident, and hence was not compensable under the statute G.S. § 97-2(f).

An accident as the word is used in the Workmen's Compensation Act was defined in Love v. Lumberton, 215 N.C. 28, 1 S.E.2d 121, 122, as "an unlooked for and untoward event which is not expected or designed by the [injured employee]"; and in Slade v. Willis Hosiery Mills, 209 N. C. 823, 184 S.E. 844, 845, as "a result produced by a fortuitous cause"; and in Edwards v. Piedmont Pub. Co., supra , as "an unexpected or unforeseen event; an unexpected, unusual or undesigned occurrence."

In the case at bar it appears from the findings of the Industrial Commission and the evidence in support thereof thatprior to the happening upon which the claim is based the deceased was in good health and without any physical defects or disease, and that in attempting to make an arrest he was resisted with unusual vigor, and subjected to over-exertion in subduing a young man rendered violent and vicious by drink, and that in consequence of having to carry the heavy weight of his prisoner (170 pounds) up three flights of stairs he suffered a physical collapse which the physician diagnosed as acute dilatation of the heart brought on by excessive exertion. There was testimony from medical experts from which the Commission drew the permissible inference that over-exertion in the manner described caused a physical injury to the tissues of Gabriel's heart in the stretching of the muscles of the heart, and that this was capable of progressive involvement. The inference is permissible from the medical testimony adduced from those who examined him, as well as from the electro cardiogram that a physical injury resulted from this unusual and unforeseen occurrence, and that there was evidence of a perceptible damage to tissues connected with the functioning of his heart. Due to the rythmic character of heart action, the injurious effects of a severe strain of the heart muscles may be progressive.

There is authority for the view that a stretching or giving of the heart muscle, caused by unusual exertion, may occur in normal individuals, and that the outcome depends upon pre-existing conditions, age of the person, and the severity of the strain (Goldstein & Shabat on Medical Technique, 369); and that a severe muscular exertion may cause injury to some of the tissues connected with heart action and initiate the development of congestive heart failure, proximately resulting in death at a subsequent period. 24 N.C.Law Review, 152.

It was also testified by medical experts that there was causal connection between the injury sustained in February 1944, and the death of the deceased in December following, and that the injury described would have been an important contributing factor in the development of later at tacks, including the fatal one in December.

It would seem from the facts found that reasonable inferences may be drawn which afford support for the conclusion reached that the deceased suffered an injury by accident within the meaning...