Kennedy v. Martin Marietta Chemicals

• Court: North Carolina Court of Appeals
• Writing for the Court: ARNOLD
• Citation: Kennedy v. Martin Marietta Chemicals, 237 S.E.2d 542, 34 N.C.App. 177 (N.C. App. 1977)
• Decision Date: 05 October 1977
• Docket Number: No. 7626IC975,7626IC975
• Parties: Margie W. KENNEDY, Widow; Alma Small Kennedy Homesley, Guardian Ad Litem for Roger Dale Kennedy, Minor Child; Lola Holden Kennedy Miller, Guardian Ad Litem for Trenton Orglee Kennedy, Minor Child, of Willis Trent Kennedy, Deceased, Employee, v. MARTIN MARIETTA CHEMICALS, Sodyeco Division, Employer, Continental National American Insurance Co., Carrier.

Page 542

237 S.E.2d 542

34 N.C.App. 177

Margie W. KENNEDY, Widow; Alma Small Kennedy Homesley Guardian Ad Litem for Roger Dale Kennedy, Minor Child; Lola Holden Kennedy Miller, Guardian Ad Litem for Trenton Orglee Kennedy, Minor Child, of Willis Trent Kennedy, Deceased, Employee, v. MARTIN MARIETTA CHEMICALS, Sodyeco Division, Employer Continental National American Insurance Co., Carrier.

No. 7626IC975.

Court of Appeals of North Carolina.

Oct. 5, 1977.

Delaney, Millette, DeArmon & McKnight, by Samuel M. Millette, Charlotte, for plaintiff-appellee, Margie W. Kennedy.

Childers & Fowler, by Max L. Childers, Mount Holly, for plaintiffs-appellees, minor children of Willis Trent Kennedy.

Kennedy, Covington, Lobdell & Hickman, by Edgar Love, III, Charlotte, for defendants-appellants.

ARNOLD, Judge.

Recovery under the Workmen's Compensation Act is designed to compensate for those injuries resulting from accidents which arise out of and in the course of employment. The term "accident" has often been defined as "(1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause." Harding v. Thomas & Howard Co., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962). Injury by accident is an injury produced by a fortuitous cause. Brown v. Aluminum Co., 224 N.C. 766, 32 S.E.2d 320 (1944).

Defendants assign error to the finding by the Commission that there was some gaseous substance or some harmful agent which accumulated in the bottom of thionator six, and that this substance or agent cut off the decedent's oxygen supply. We must determine, then, if there is any evidence of substance which will directly, or by reasonable inference, tend to support the Commission's findings. If the findings of fact are supported by any such evidence they are binding on appeal even though there be evidence to support a contrary finding. Willis v. Drapery Plant, 29 N.C.App. 386, 224 S.E.2d 287 (1976); Russell v. Yarns, Inc., 18 N.C.App. 249, 196 S.E.2d 571 (1973).

Gary McCorkle, the chemical company's employee who went into thionator 6 to retrieve the decedent, gave the following testimony:

"I went down in the tank to see him sitting down on top of the coils. I called him. He still didn't answer. I grabbed him under each arm trying to pull him out. I couldn't budge him. As I looked down a little further in the tank, I noticed his leg was it seemed to to be stuck in between the coils or something, and as I stepped off the coil down into the bottom of the tank and as I leaned over to push his knee out, it was, I don't know, just a heavy fume or something hit me, just like it took all my wind away from me, made me weak, and I just hollered back up there and told them it was gas in the tank. I started crawling out. I think I remember getting to the mouth of the tank. I don't know whether I made it all the way out or somebody pulled me out. When I came to, I was out on the dock of the plant. I don't remember pulling myself out of the tank or nothing. All I remember when that heavy fume hit me it just made me dizzy and took the wind out. All I wanted to do was get some air."

Notwithstanding the extensive evidence by defendants concerning Martin Marietta' precautions in preparing thionator six for repair work, we find McCorkle's testimony to be competent evidence which tends to support the finding that there was a harmful gaseous substance in the bottom of the thionator.

The next argument presented by defendants is that the Commission erred in finding that a sudden deprivation of oxygen accelerated or aggravated Kennedy's pre-existing heart condition, thereby triggering his heart attack. According to defendants, Dr. Wood's testimony does not support that finding because (1) Dr. Wood's testimony on this point was in terms of possibilities rather than probabilities and (2) the hypothetical question directed to him did not contain all relevant facts. We disagree.

There is nothing in the record which indicates that Dr. Wood was testifying in terms of possibilities rather than probabilities. The hypothetical...