Johnson v. Hughes

• Decision Date: 01 January 1935
• Docket Number: No. 97.,97.
• Citation: 207 N.C. 544,177 S.E. 632
• Parties: JOHNSON. v. HUGHES et al.
• Court: North Carolina Supreme Court

177 S.E. 632

207 N.C. 544

JOHNSON.

v.HUGHES et al.

No. 97.

Supreme Court of North Carolina.

Jan. 1, 1935.

Appeal from Superior Court, Buncombe County; Pless, Judge.

Action by K. B. Johnson against the G. E. Hughes and Southern Dairies, Inc. From a judgment for defendant, plaintiff appeals.

Affirmed.

The plaintiff brought a civil action for damages for personal injury. He allegedthat on or about the 16th day of May, 1931, and on various days thereafter, and while in the employment of the defendant, he was required to move certain heavy equipment, consisting of metal pipe, coils, pumps, electric motors, bottle fillers, vats, ice cream freezers, etc., and that in the performance of such duties he was not furnished sufficient help, and that, as a result "of defendant's said negligence and willful acts and commands and orders, the plaintiff's nerves and nervous system, strength and general health were impaired, shattered and destroyed, and the plaintiff has been seriously, permanently and totally incapacitated for the prosecution of work for which he previously earned about $50.00 per week, " etc. The defendant demurred upon the ground that it appeared upon the face of the complaint that the relation of employer and employee existed between the plaintiff and the defendant "at the time plaintiff's alleged cause of action arose, and that such rights and remedies as plaintiff had, if any, are governed by the provisions of the Workmen's Compensation Act (Pub. Laws 1929, c. 120, as amended), and that, therefore, only the Industrial Commission of North Carolina has jurisdiction to hear and determine the matters alleged and set forth in the complaint."

No point is made that the defendant did not have in its employment the necessary number of workmen. The demurrer was sustained by the judge of the county court, and, upon appeal to the superior court, the judgment of the county court was affirmed. Thereupon the plaintiff appealed to the Supreme Court.

Geo. M. Pritchard, of Asheville, for appellant.

Johnson, Rollins & Uzzell, of Asheville, for appellee.

PER CURIAM.

It was held in McNeely v. Asbestos Co., 206 N. C. 568, 174 S. E. 509, that injuries by accident sustained by a workman, in the course of his employment, were compensable, whether such injuries resulted from active negligence or not. It was further held that sickness or physical breakdown, produced solely by negligence, was not per se an "occupational disease, " but an injury by accident within the meaning of...