Hensley v. Farmers Federation Co-op., CO-OPERATIV

• Decision Date: 22 May 1957
• Docket Number: CO-OPERATIV,E,No. 94,94
• Citation: 246 N.C. 274,98 S.E.2d 289
• Court: North Carolina Supreme Court
• Parties: Baxter HENSLEY, Employee, v. FARMERS FEDERATIONmployer; Nationwide Insurance Companies, Carrier.

Page 289

98 S.E.2d 289

246 N.C. 274

Baxter HENSLEY, Employee, v. FARMERS FEDERATION CO-OPERATIVE, Employer; Nationwide Insurance Companies, Carrier.

No. 94

Supreme Court of North Carolina.

May 22, 1957

Williams & Williams, Asheville, for defendant-appellant.

No counsel contra.

RODMAN, Justice.

The crucial question presented by the exceptions is: Does the evidence suffice to show that plaintiff, in the course of his employment, sustained a compensable hernia?

Defendants' exceptions necessitate a review of the evidence. We do so in conformity with the well-settled rule that findings of fact made by the Commission are, when supported by any evidence, conclusive on appeal. Plaintiff is entitled to urge, in support of the findings, every reasonable inference which can be drawn from the testimony; but when all the evidence and the inferences to be drawn therefrom result in only one conclusion, liability is a question of law subject to review. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706; Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760; Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298; Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730.

If the Commission in its findings of fact used the words 'twisted,' 'normal,' and 'twist' in the sense that there was something abnormal in plaintiff's movement when he felt the pain, the finding is not supported by the evidence. We understand the Commission used the words 'twisted' and 'twist' as meaning 'turned' and 'turn' and the word 'normal' as the equivalent of 'usual.' When so understood, they accord with plaintiff's testimony. He did not use any of the quoted words.

He described his work in this manner: 'I was dipping chickens in barrels of water, six chickens at a time, pick them up off a table and dipping them in a barrel of water and picking them back up and put them on a scale. I would turn to my left and get the chickens off a table about three feet high. The table was about equal height all the way around. I was standing up, and turned to my left and got six chickens off a table about three feet high. I then turned them around and dipped them and into a barrel of water, to the right. I had to stoop down to do that. The tub was on the floor. I brought them back out of the barrel and placed them on the scales to get weighed. * * * When I got the chickens out of the barrel of water, I turned around and put them on the scales to my right. * * * I had been doing that kind of work for the Federation for about two and a half years at that time.'

With respect to the moment of injury he said: 'I was dipping those chickens in that barrel of water when the pain first started. * * * I had come off the table with a basket of chickens to take them and dip them in a barrel of water. I had turned to my left to get the chickens off the table when I first felt it and it was from that on the more I dipped the chickens the worse it got.' On cross-examination he said: 'I handled every one of them essentially, exactly alike. I picked them up off the table as I have described, to my left, dipped them in a tub of water straight in front of me. Then I put them on the scales to my right. * * * I was doing them the same way on this day that I felt the pain. On the particular one, when I felt the pain, I hadn't handled it any different from any of the others. I didn't slip or fall or turn or anything of that sort.'

The normal manner of operation at the moment he felt the pain is emphasized by questions asked later in the testimony. 'Q. Now, I want to be sure I understand. At the time you first experienced this pain, you hadn't done anything, slipped, twisted, turned or anything, fallen down, or anything different than you had been doing for two years? A. No, sir, I hadn't. Q. And the weight you were lifting wasn't any heavier than the weight you had been lifting for the last two years? A. That's right.'

Dr. Chapman, who treated plaintiff, found the hernia when he first examined him on 3 September. He expressed the opinion that work of the kind and done in the manner described by plaintiff could have caused the hernia.

A hernia, to be compensable, must, by the express language of our statute, G.S. § 97-2, meet five conditions:

'First. That there was an injury resulting in hernia or rupture.'

Injury is defined as 'Damage or hurt done to or suffered by a person or thing.' Webster's Int. Dic.

The evidence is sufficient to justify a finding that plaintiff had an injury resulting in hernia. The first requirement is met.

'Second. That the hernia or rupture appeared suddenly.' For the purpose of this case it may be conceded that the second requirement is established.

'Third. That is was accompanied by pain.' Plaintiff so testified. The Commission accepted his testimony. The third requirement is met.

'Fourth. That the hernia or rupture immediately followed an accident.'

Where is the evidence to support an affirmative finding to this condition? What is an accident? The mere fact that plaintiff suffered an injury does not establish the fact of accident.

The Workmen's Compensation Act was enacted in 1929. At the Spring Term 1930 the word 'accident,' as used in the Act, was defined. Justice Adams said: 'The word 'accident,' as used here, has been defined as an unlooked for and untoward event which is not expected or designed by the person who suffers the injury.' Conrad v. Cook-Lewis Foundry Company, 198 N.C. 723, 153 S.E. 266, 268.

The distinction between and necessity of both injury and accident was emphasized in Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844, 845, decided Spring Term 1936. There an employee, performing his work in the usual and customary manner, got wet and contracted pncumonia. Stacy, C. J., said: 'Death from injury by accident implies a result produced by a fortuitous cause. Scott v. Aetna Life Ins. Co., 208 N.C. 160, 179 S.E. 434. A compensable death, then, is one which results to an employee from an injury by accident arising out of and in the course of the employment. There must be an accident followed by an injury by such accident which results in harm to the employee before it is compensable under our statute.'

The rule enunciated in the Slade case that death or injury sustained as a result of work by the employee in his usual, customary manner and without some fortuitous event is not compensable was reiterated the following year in Neely v. City of Statesville, 212 N.C. 365, 193 S.E. 664, 665. There a fireman died from a heart attack while engaged in fighting a fire. The Court said: 'The work in which the deceased was engaged was the usual work incident to his employment. The surrounding conditions might be expected at a fire. The falling in of the roof is a natural result of fire burning there. Heat and smoke are expected. Physical exertion is required in handling the hose and fire fighting equipment. The firemen, of necessity, act hurriedly. We find no evidence of an accident.'

Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, 608, was decided at the Fall Term 1938. Plaintiff claimed compensation for hernia. He was injured while helping in the lifting of heavy pipes. The Commission found the hernia Compensable and awarded compensation. The award was affirmed. The defendants there insisted that compensation was forbidden by the decisions in the Slade and Neely cases, supra. Justice Seawell, responding to this argument, said: 'This could be so only to the extent that the cases were on all-fours, since the Neely case [supra] and the Slade case [supra] merely applied well known principles of law to the circumstances peculiar to those cases.' He then points to the difference, viz., the injured employee was not accustomed to do that kind and character of heavy work. He said: '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.'

A similar result was reached in Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96, where there was unusual and unexpected exertion and straining in the performance of duties, thus producing the heart attack which resulted in death.

Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E. 231, was decided in 1940. The Court was again called upon to determine liability in hernia cases. Factually the case came within the rule announced by the Court in Moore v. Engineering & Sales Co., supra, and hence outside of the rule laid down in the Slade and Neely cases, supra. This was frankly recognized by Justice Seawell, who wrote the opinion. Having announced the fact, he uses language which lends support to the argument that the Court intended to adopt a new rule and hold that injury and accident were...