Ussery v. Erlanger Cotton Mills

• Decision Date: 25 November 1931
• Docket Number: 409.
• Citation: 161 S.E. 307,201 N.C. 688
• Parties: USSERY v. ERLANGER COTTON MILLS et al.
• Court: North Carolina Supreme Court

161 S.E. 307

201 N.C. 688

USSERY v. ERLANGER COTTON MILLS et al.

No. 409.

Supreme Court of North Carolina

November 25, 1931

Appeal from Superior Court, Davidson County; John H. Harwood Special Judge.

Proceedings under the Workmen's Compensation Act by William T. Ussery against the Erlanger Cotton Mills and another. From an award of the Industrial Commission, the Ætna Life Insurance Company, insurance carrier, appeals to the superior court and, from the judgment affirming the award, it appeals.

Remanded.

Findings of fact by Industrial Commission conclusive.

This is a proceeding under the provisions of the North Carolina Workmen's Compensation Act, chapter 133A, N.C. Code of 1931, section 8081 (h) et seq. The plaintiff is an employee of the defendant Erlanger Cotton Mills; the defendant Aetna Life Insurance Company is the carrier for its codefendant. Both plaintiff and defendants are subject to the provisions of the act, N.C. Code of 1931, § 8081 (k).

The facts found at the hearing before the North Carolina Industrial Commission are as follows:

"1. That the plaintiff was regularly employed by the defendant employer on November 10, 1930, at an average weekly wage of $15.83.

"2. That the plaintiff sustained an accidental injury resulting in a left inguinal hernia on November 10, 1930, which appeared suddenly with pain following an accident, and he did not have said hernia prior.

"3. That the plaintiff has lost no time from his regular work because of said hernia."

On the foregoing facts, the commission awarded the plaintiff "an operation to cure the left inguinal hernia and compensation at $9.50 (60 per cent of $15.83) per week for such period of time as the plaintiff is unable to work because of said operation, as provided by section 2(r) of the North Carolina Workmen's Compensation Act. Code 1931, § 8081 (i), subd. r.

"The defendant shall pay to the proper parties all necessary medical and surgical and hospitals costs in this case. The defendant will pay the costs of this hearing."

From this award, the defendant Aetna Life Insurance Company, the carrier for its codefendant, appealed to the judge of the superior court of Davidson county. From judgment affirming the award, the defendant appealed to the Supreme Court.

Sapp & Sapp, of Greensboro, for appellant.

Martin & Brinkley, of Lexington, for appellees.

CONNOR J.

Section 2(r), chapter 120, Public Laws of North Carolina 1929, section 8081(i), subd. r, N.C. Code of 1931, is as follows:

"In all claims for compensation for hernia or rupture, resulting from injury by accident arising out of and in the course of the employee's employment, it must be definitely proven to the satisfaction of the Industrial Commission:

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

"Second. That the hernia or rupture appeared suddenly.

"Third. That it was accompanied by pain.

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

"Fifth. That the hernia or rupture did not exist prior to the accident for which compensation is claimed.

"All hernia or rupture, inguinal, femeral or otherwise, so proven to be the result of an injury by accident arising out of and in the course of employment, shall be treated in a surgical manner by a radical operation. *** In case the injured employee refuses to undergo the radical operation for the cure of said hernia or rupture, no compensation will be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the Commission considers it unsafe for the employee to undergo said operation, the employee shall be paid

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