Johnson v. Charlotte Bagging Co. , 203 N.C. 579 ( 1932 )

Clarkson, J.

The plaintiff contends: “That the judgment of the Superior Court should be reversed because the only evidence upon which the Industrial Commission issued an award ivas upon the incompetent testimony of Dr. Kipp, no one else, as the record will show, testified that the deceased received any other injury except the one caused by the falling brick.” ¥e think the record discloses evidence that Pink Johnson deceased, died as a result of pneumothorax following bronchitis and not of any injury.

In Brown v. Ice Co., ante, at p. 100, we find; Brogden, J.: “Obviously, if all the testimony offered by a claimant, tending to show an injury sustained in the course of his employment, was hearsay and incompetent, no finding based upon such testimony could be upheld.”

This principle of law is sane and sound, and should be adhered to. It goes without saying that courts must hold to the well settled rules of evidence.

Conceding, but not deciding, that the testimony of Dr. Hipp, giving the history of the second injury as narrated to him by Pink Johnson and his wife, Carrie Johnson, was incompetent, yet we think there is sufficient competent evidence on the record to sustain Commissioner Dorsett, affirmed by the full Commission and the court below. In admitting the testimony contended by plaintiff as incompetent, the Com missioner, stated: “By the court: I know it is not competent, but I am going to admit it for what it might be worth, in helping me find the facts, give plaintiff an exception.” The evidence admitted, as' testified to by Dr. Hipp, of what the Johnsons narrated to him, in part, is as follows: “On or about 7 January, 1931, while working at the Charlotte Bagging Company, Charlotte, North Carolina, a brick fell a short distance, striking him on the left side of the head. The wound which was rather small was treated at the Charlotte Bagging Company by the first aid man. The wound had apparently healed nicely and caused no inconvenience or discomfort. He continued working following the accident. Several days previous to 14 January, 1931, he stated he was under his residence getting coal and he struclc his head on a nail protruding through the '¡loor, the nail tearing open the apparently healed wound, which he received on 7 January, 1931. Following the injury to his scalp with the nail, the wound became very sore and gave him pain. He also stated that for some time he had had a bad cold with a rather severe cough. This cold and cough ante-dated his injury at the Charlotte Bagging Company. At the time of my examination on 14 January, 1931, I found this man to have a small lacerated wound of the scalp on the left side of the head, the wound being infected and draining pus. I cleaned it thoroughly, and a|)plied antiseptic dressing.”

The full Commission found: “Upon the findings that the death of the deceased was not the result of any injury arising out of and in the course of his employment, the claim for compensation is denied and case dismissed.”

The injury complained of by Pink Johnson, deceased, while working for the defendant his employer, was on 7 January, and he died on 3 March, 1931. Dr. Hipp further testified, unobjected to: “Q. Then she gave a history of his scraping his head on a nail underneath the house? A. Yes, sir. Q. Tearing open the same wound? A. Yes, sir. Q. The wound developed erysipelas? A. The same wound? Yes, sir. Q. You gave antitoxin for erysipelas? A. Yes, sir. Q. And it cleared up the erysipelas? A. Yes, sir. Q. And you do not see any connection between the erysipelas and the pneumonia that caused his death? A. Aro sir. Q. And in fact, the first time you saw him, he was suffering from bronchitis and a cold or lung trouble? A. Tes, sir." This is sufficient evidence, to sustain the finding.

In Kenan v. Motor Co., ante, at p. 110, is the following: “It is well settled that if there is any competent evidence to support the findings of fact of the Industrial Commission, although this Court may disagree with such findings, this Court will sustain the findings of fact made by the Commission.”

In Garris v. Hines Bros., ante, at p. 148, we find, often reiterated: “Tbe law bas established tbe Industrial Commission as a tribunal to find tbe facts in compensation cases. Tbis Court bas consistently beld in accordance witb tbe statute tbat, if there is any competent evidence to support tbe findings of fact made by tbe Commission, such findings are binding upon tbe appellate courts.”

Tbe well considered brief and able argument of plaintiff was persuasive, but we are bound by the- findings of tbe Industrial Commission. Tbe judgment below is

Affirmed.