Rhinehart v. Roberts Super Market, Inc. , 271 N.C. 586 ( 1967 )

157 S.E.2d 1 (1967) 271 N.C. 586

William David RHINEHART, Employee
v.
ROBERTS SUPER MARKET, INC., Employer, and Fidelity & Casualty Co. of New York, Carrier.

No. 204.

Supreme Court of North Carolina.

October 11, 1967.

Fairley, Hamrick, Hamilton & Monteith, Charlotte, for defendant appellants.

Whitener & Mitchem, Gastonia, for claimant appellee.

PER CURIAM.

Except in the case of certain occupational diseases, compensation may not be awarded under the Workmen's Compensation Act unless there is proof of a disability due to an injury, which injury was the result of an accident arising out of and in the course of the employment. G.S. § 97-2(6). A finding by the Industrial Commission that the claimant sustained such an injury is conclusive upon an appeal to the courts if, but only if, the Commission had before it competent evidence sufficient to support such a finding. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3.

The terms "injury" and "accident," as used in the Act, are not synonymous. "Absent accident (fortuitous event), death or injury of an employee while performing his regular duties in the ``usual and customary manner' is not compensable." O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193. An accident, as the term is used in the Act, is "(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, 124 S.E.2d 109. While there need be no appreciable separation in time between the accident and the resulting injury, Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342, there must be some unforeseen or unusual event other than the bodily injury itself.

In Keller v. Electric Wiring Co., supra, the claimant was standing in a narrow ditch, when, in the course of his employment, it became necessary for him to lift and, with a twisting motion, throw out of the ditch a heavy rock. The twist, under these circumstances, was deemed an accident from which the injury resulted.

Here, the evidence points inescapably to the conclusion that the claimant was doing what he expected to do and was employed to do, was doing it in the ordinary manner, and was free from confining or otherwise exceptional conditions and surroundings. There was nothing unforeseen or unexpected except the injury itself. Thus, the evidence is not sufficient to support the finding that there was an injury by an accident. The court erred in affirming the award of the Commission.

Reversed.