Pardue v. Blackburn Bros. Oil & Tire Co., 384

• Decision Date: 30 October 1963
• Docket Number: No. 384,384
• Citation: 132 S.E.2d 747,260 N.C. 413
• Court: North Carolina Supreme Court
• Parties: J. T. PARDUE v. BLACKBURN BROTHERS OIL & TIRE COMPANY and Shelby Mutual Insurance Company.

Page 747

132 S.E.2d 747

260 N.C. 413

J. T. PARDUE v. BLACKBURN BROTHERS OIL & TIRE COMPANY and Shelby Mutual

Insurance Company.

No. 384

Supreme Court of North Carolina.

Oct. 30, 1963

Daniel J. Park, Elkin, for plaintiff.

McElwee & Hall, North Wilkesboro, for defendants.

MOORE, Justice.

Defendants except to the judgment below on the ground that the conclusions of law and award of the Commission are 'not supported by sufficient findings of fact and evidence that appellee sustained an injury by accident.'

With respect to plaintiff's duties and the occurrence from which the injury arose, the Commission made only the following findings of fact:

'1. Plaintiff * * * began working for defendant employer on December 28, 1961, his duties being to recap tires.

'2. On February 28, 1962, the plaintiff was mounting a tractor tire on a tractor; that the tire was a large tractor tire; that the plaintiff had taken the tire off the tractor and pumped approximately 50 gallons of fluid into the tire and then was engaged in putting the tire back on the tractor; that the plaintiff had hold of the heavy tire with his left hand up at the top of the tire and with his right hand down toward the bottom of the tire at about the level of his knee and was in a crouched position; that the plaintiff was trying to get the hole in the wheel lined up with the lug bolt in order to tighten the lug bolt; that the plaintiff pushed in with his right hand on the tire and pulled out with his left hand and while in this position he felt a pain in his back; that the plaintiff continued to work on the remainder of the day with his back paining him, but he thought that it soon would wear off.

'4. The plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant employer on February 28, 1962, as described in Finding of Fact No. 2, * * *.'

A back injury or hernia suffered by an employee does not arise by accident if the employee at the time was merely carrying out his usual and customary duties in the usual way. Byrd v. Farmers Federation Cooperative, 260 N.C. 215, 132 S.E.2d 348; Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109; Turner v. Burke Hosiery Mill, 251 N.C. 325, 111 S.E.2d 185; Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614; Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 98 S.E.2d 289.

In cases involving back injury or hernia the elements constituting accident are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Faires v. McDevitt & Street Co., 251 N.C. 194, 110 S.E.2d 898; Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605. The following are some of such cases in which it was held that the injuries resulted from accident: Davis v. Summitt, 259 N.C. 57, 129 S.E.2d 588; Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E. 2d 342; Searcy v. Branson, 253 N.C. 64, 116 S.E.2d 175; Faires v. McDevitt & Street Co., supra; Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802; Rice v. Thomasville Chair Co., 238 N.C. 121, 76 S.E.2d 311; Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231. Some of such cases in which the facts of the occurrence were held insufficient to constitute accident are listed in the preceding paragraph of this opinion.

The facts found by the full Commission are supported by competent evidence. But there are not sufficient findings to support the conclusion that plaintiff sustained an injury by accident. The Commission found that it was plaintiff's job to...