Smith v. Cabarrus Creamery Co.

• Decision Date: 17 April 1940
• Docket Number: 379.
• Parties: SMITH v. CABARRUS CREAMERY CO., Inc., et al.
• Court: North Carolina Supreme Court

8 S.E.2d 231

217 N.C. 468

SMITH v. CABARRUS CREAMERY CO., Inc., et al.

No. 379.

Supreme Court of North Carolina

April 17, 1940

The record contains the following succinct statement of the history of the case:

"This case was originally a claim before the Industrial Commission. The claim for compensation was filed with the Industrial Commission on March 7, 1939. The defendants denied liability for compensation and the claim was heard after due notice to all parties by Chairman T. A. Wilson in Concord on July 19 1939. The Hearing Commissioner on July 27, 1939, issued an award for compensation. The defendant appealed from the award of the Hearing Commissioner to the Full Commission. The appeal was heard by the Full Commission on October 6, 1939. On October 9th, 1939 the Full Commission affirmed the award of the Hearing Commissioner. The defendants appealed from the award of the Full Commission to the Superior Court of Cabarrus County. The appeal to the Superior Court was duly docketed on November 3rd, 1939, and was heard by Judge S. J. Ervin, Jr., in Concord, on December 5th, 1939. The Superior Court affirmed the award of the Full Commission by a judgment entered on December 5th, 1939. The defendants now prosecute this appeal to the Supreme Court from the judgment of the Superior Court affirming the award of the Full Commission."

It is admitted that the plaintiff was an employee of the defendant, Cabarrus Creamery Company, Inc., at a salary of $25 per week, at the time of his injury, and that all parties are subject to the Workmen's Compensation Act.

Plaintiff's evidence was substantially as follows: The plaintiff was delivering milk to a cafe in his regular employment, and on the day of his injury had "checked the box" in the care in which he was to place the milk, went back, and returned with the milk. This had to be placed in a large box which contained a smaller box of chipped ice weighing from 125 to 150 pounds. It was necessary to lift this smaller box in order to place the milk beneath it. The smaller box was "down in the corner". In lifting it was necessary to bring the box "straight up", as it did not have "a half inch play." The plaintiff got into position, leaning over the edge of the big box which, as he said, "hits me exactly to that place to the inch. Where I had the rupture, the big box where I lean over, that is right where it hits me." The plaintiff reached over into the big box, got the smaller box, and lifted it straight up. When he "went to come up with it" there was a sharp pain when he had gotten it about half way up, and plaintiff got sick. He rubbed the spot, waited a little, and felt better. He continued his duties until about twelve o'clock, when he went to the office and told Miss Burrage that he had hurt or strained his side. He thought he was ruptured, but was not sure.

Dr Howard examined him, plaintiff says, and told him he did not think he was ruptured, that he had strained himself but did not think it had "tore through". Three or four days afterward he went back to Dr. Howard, and the rupture then "showed up as big as a hen egg", and Dr. Howard advised an operation.

After some interval he went to a Government Hospital at Kecoughton, Va., underwent an operation for hernia, and stayed there from March 3rd to April 14th. All of his hospital expenses and transportation were paid by the United States Government, and he now seeks compensation only for loss of earnings during the period he was unable to work.

Dr. Howard corroborated the witness as to the result of his examinations, stating that in about ten days from his first examination the plaintiff showed to be ruptured, and that the hernia was bulging so you could see it through the right inguinal ring.

The defendants introduced in evidence a prior sworn statement of the plaintiff, the part relevant to defendants' present contention being as follows: "The ice box I was lifting at the time I felt the pain weighed from 125 to 150 pounds. I think the strain of reaching down into the big box and lifting out the little box is what caused my trouble. My foot did not slip and I do not know of anything of that kind that happened. I just lifted the box up like I usually did every day when I delivered the milk."

The plaintiff had had a hernia on the left side four or five years previously. The present hernia is on the right side.

Upon the evidence, the full Commission approved the previous findings of the Hearing Commissioner and made an award. Defendants appealed and the award was affirmed in the Superior Court, from which defendants again appealed to this Court.

Gover & Covington and Hugh L. Lobdell, all of Charlotte, for defendants, appellants.

Hartsell & Hartsell, of Concord, for plaintiff, appellee.

SEAWELL Justice.

We consider it necessary to consider only the defendants' contentions that plaintiff's injury was not caused by accident within the meaning of Section 2(f) of the Workmen's Compensation Act, Chapter 120, Public Laws of 1929. Upon the evidence there can be no contention that whatever it was did not arise out of and in the course of the employment.

There is no definition of the term "by accident", or of the word "accident" in the Act. In the section and subsection cited, injury is defined as meaning only "injury by accident arising out of and in the course of the employment."

Briefly stated, the contention of the defendants is that the term "by accident" necessarily means by an accident taking place entirely outside the body of the person injured as the result of which, and through the application of external force, the injury is produced. Therefore, they contend that no fortuitous, unusual or unexpected happening within the body, such as a sudden rupture under the strain of lifting while the employee is doing the work in the usual way, is to be considered in determining whether the injury is by accident. They t...