Faires v. McDevitt and Street Company , 251 N.C. 194 ( 1959 )

110 S.E.2d 898 (1959) 251 N.C. 194

J. M. FAIRES, Employee,
v.
McDEVITT AND STREET COMPANY, Employer; Travelers Insurance Company, Carrier.

No. 246.

Supreme Court of North Carolina.

November 11, 1959.

Carswell & Justice and Richard E. Thigpen, Jr., Charlotte, for plaintiff-appellant.

B. Irvin Boyle and J. J. Wade, Jr., Charlotte, for defendants-appellees.

MOORE, Justice.

This appeal poses one question: Does the evidence in the record support the findings of fact of the Industrial Commission and its conclusions of law based thereon that plaintiff suffered an injury by accident arising out of and in the course of his employment, resulting in a hernia?

An employee's injury resulting in a hernia is compensable only if it be definitely proven: (1) that he received an injury arising out of and in the course of his employment, resulting in hernia; (2) that the hernia appeared suddenly; (3) that it was accompanied by pain; (4) that the hernia immediately followed an accident; and (5) that the hernia did not exist prior to the accident. G.S. § 97-2(r); Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 277, 98 S.E.2d 289; Rice v. Thomasville Chair Co., 238 N.C. 121, 123, 76 S.E.2d 311.

Appellant contends that all five requirements are proven by competent evidence appearing in the record. Appellees insist that the fourth and fifth requirements have not been shown to exist in this case.

If an employee, while performing his regular duties in the "usual and customary manner," receives an injury resulting in a hernia, such injury is not caused by accident and is not compensable. Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614; Hensley v. Farmers Federation Cooperative, supra.

Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, is controlling in the instant case. In the Moore case plaintiff was a foreman but was also required to do manual work in installing plumbing. On the day of his injury all workers were laid off except plaintiff and one Sykes, a helper. They were ordered to complete the job. They attempted to lift a steel pipe weighing 400 to 450 pounds. Plaintiff suffered a sharp pain in his abdomen and it was found that he had received a hernia. Prior to that time plaintiff had been doing the same general type of work but with different type of materials and had not previously lifted pipes of this type and weight. Seawell, J., speaking for this Court said in 214 N.C. at pages 429 and 430, 199 S.E. at page 608:

"In the case at bar the evidence discloses that while the operation of handling and lifting pipes was done in the ordinary manner, and even that the plaintiff had lifted pipes in that way before, two things occurred which, taken together, were out of the ordinary, and are sufficient, we think, to bring into the transaction the element of unusualness and unexpectedness from which accident might be inferred. In this particular case, by order of a superior, all other employees except plaintiff and Sykes were discharged, and these were left alone to do the heavy lifting. While Sykes had handled that type of pipe and perhaps piping of that weight before, the plaintiff had not. On the contrary, he was required to lift piping of a type and of a weight he had never before lifted, and it may be inferred from the testimony of Sykes that this was caused by the laying off of all other employees, which left them shorthanded. From the evidence, his effort to lift the pipe was immediately followed by an injury.

"In the case at bar, there is in the foregoing sufficient evidence of the interruption of the routine of work, and the introduction thereby of unusual conditions likely to result in unexpected consequences, and these were of such a character as to justify the Industrial Commission in finding that plaintiff's injury was the result of accident."

It will be observed that the elements constituting "accident" as set out in the Moore case were "the interruption of the routine of work, and the introduction thereby of unusual conditions likely to result in unexpected consequences." The same elements exist with equal definiteness in the case at bar. The work plaintiff was doing at the time he received his injury was usually done by laborers. As a carpenter he did not customarily do this type of work. On a job of this kind carpenters usually "stripped" the forms and laborers lifted and removed them. On this occasion the other carpenters and helpers had been withdrawn from the job. Furthermore, the task plaintiff was performing in lifting the forms was usually and customarily done by two men. The forms were heavy and the lifting required extreme and unaccustomed exertion and strain. The fact that there were numerous forms to be lifted in this unusual task is not important. The crucial facts are: (1) plaintiff's routine of work had been interrupted and he was required to undertake a task that was not usual and customary; and (2) unusual conditions likely to result in unexpected consequences were introduced—an unusual task, requiring extreme exertion and strain in a confined and difficult place to work, which task was usually performed by two men instead of one. Therefore the resulting injury immediately followed an accident. See Rice v. Thomasville Chair Co., supra.

We next inquire as to whether or not the hernia existed before the accident. The Commission found that it did not.

Dr. H. L. Seay gave testimony that he treated plaintiff for several months before the accident and examined him afterwards. He stated that plaintiff was suffering from hypertension and congestive heart. The doctor further testified: "He consulted me * * * for pain or hurting in the groin on either side. I believe that was on August 20th. * * * I did not find what I thought was a definite hernia or rupture and I did not attach too much importance to it. He was complaining of chronic constipation and arthritis in the neck, some shortness of breath and a discomfort in his stomach. * * * I did casually examine the abdomen and groins on August 20th but did not give him any intensive examination. I did not see a hernia on either side at that time. I did not see any obvious evidence of hernia such as a bulge or swelling in either groin.

Dr. John P. Kennedy, the surgeon who performed the operation, testified: "I examined him on September 11th and he had a small inguinal hernia on the left side and a beginning inguinal hernia on the right side. In my opinion the lifting of these forms in the manner in which the plaintiff said he lifted them could or might have caused the condition I found. * * * From the history he gave me the hernia on the left side had no relation to this injury he said he suffered on September 6, 1956. As far as I know it was not related. * * * he did have hernia on both sides."

The Commission awarded compensation only for the hernia on the right side. The foregoing evidence is competent and supports the finding that the hernia on the right side did not exist prior to the accident on September 6, 1956.

In appellees' brief the following question is asked: "If the Supreme Court reverses the ruling of the Superior Court, then may the Supreme Court consider those objections and exceptions of the Appellees to the Order and Award of the North Carolina Industrial Commission which were not passed upon by the Superior Court but which appear fully in this record?"

The record does not disclose that any exception was taken to the failure of the judge in Superior Court to pass upon these objections and exceptions. They are not before us. Tanner v. Ervin, 250 N.C. 602, 614, 109 S.E.2d 460. However, consideration has been given to the matters referred to and they are found to be without merit. The Commission's findings of fact are supported by competent evidence and these findings support its conclusions of law and award.

The judgment below is reversed and this cause is remanded with instructions that a judgment be entered affirming the Commission's award.

Reversed and remanded.

HIGGINS, J., not sitting.