MacRae v. Unemployment Compensation Commission

Clarkson, J.

The question involved: Does the record contain any competent evidence sufficient to sustain the finding of the Full Commission that the plaintiff received an injury by accident arising out of and in the course of his employment by defendant? We think so.

N. C. Code, 1939 (Michie), sec. 8081 (i), subsec. (f), is as follows: “ 'Injury and personal injury’ shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.”

We think plaintiff’s disease is the result of an injury by accident within the meaning of subsection (f), supra, of the act. It is not an occupational disease. The occupational disease section of the Compensation Act, Laws 1935, ch. 123, sec. 50% (a), applies only to diseases which result from the cumulative effect of long, continued exposure to risks and conditions inherent and usual in the nature of the employment.

The language of the occupational disease section of the act, sec. 50% (a), is heretofore set forth in the opinion of the Full Commission, as relied on by defendant to defeat plaintiff’s claim. We have gone into the question of occupational disease in the recent case of Blassingame v. Asbestos Co., ante, 223. The hearing Commissioner found, and there was competent evidence to sustain the findings: “The Commissioner finds as a fact from the evidence and the greater weight of the evidence that the reception of the sputum sprays and the sputum itself from the mouth of Tyson into the face and mouth of the plaintiff was the cause of the development of the tuberculosis in the plaintiff; and, .the Commissioner further finds as a fact that the reception of said spray and sputum flying through the air, under the circumstances as described in the evidence in this case, amounted to an injury by accident.” This finding was affirmed by the Full Commission, who also found: “In the instant case, the Commission is of the opinion that the coughing and the' sputum accidentally hitting the plaintiff and entering his mouth constitutes an injury by accident.”

In Smith v. Creamery Co., ante, 468, the evidence tended to show that-the injured employee was employed to deliver milk, that in delivering milk to a cafe in tlie regular course of bis employment be attempted to lift a box containing chipped ice, and weighing from 125 to 150 pounds, out of a large box in order to place the milk he was delivering beneath it, that while lifting the box he felt a sharp pain and that it was later determined that he had suffered a hernia. The clear and well written decision by Mr. Justice Seawell says: “The Court certainly does not intend to say that compensation may be awarded for an injury which is not the result of fortuitous circumstances or for an injury which is but the natural and probable result of the employment. We only go so far as to hold that in considering the constituent element of 'accident’ it is competent to take into consideration the sudden and unexpected rupture of the parts supporting the viscera, as happened to the plaintiff, under the strain of lifting, as part of the fortuitous circumstances making up the accident. It was not, as in Slade v. Hosiery Mills, supra (209 N. C., 823), and Neely v. Statesville, supra (212 N. C., 365), a natural and probable result of the work being done, and the facts of the case justified the finding on the part of the Commission, as affirmed by the court, that plaintiff sustained his injury by accident arising out of and in the course of his employment.”

We think the above case is analogous to the present action. It was in evidence that Frank Tyson, who had a very highly active case of pulmonary tuberculosis and his sputum at those times contained tubercular bacilli, about the middle of February, while Neill MacRae was working with said Tyson in the course of said employment, said Tyson unexpectedly and involuntarily coughed directly into the face of Neill MacRae, expectorating sprays or sputum into MacRae’s mouth. Almost immediately thereafter the plaintiff, a strong, healthy young man, commenced to have bodily fatigue and went down and down, and on 5 June of that year was found to have pulmonary tuberculosis.

Dr. Brian testified, in part: “Q. Do you have an opinion ? Ans.: Yes, sir. Q. What is your opinion? Ans.: My opinion is that MacRae contracted his tuberculosis from Frank Tyson as a result of his working in close proximity with Tyson. ... At any time any patient is coughing up tuberculosis bacilli, another patient may get the disease from him. . . . I’d classify tuberculosis as a communicable infectious disease. It is communicated from one person to another by physical conditions. The reception into the body of sputum containing tubercular bacilli is the most favorable medium of transmitting the disease.”

Plaintiff’s tubercular disability is directly attributable to his infection when Tyson involuntarily and unexpectedly coughed spray and sputum into plaintiff’s face and mouth. Such coughing was untoward, unfortunate and unusual in its proximity to and its effect upon plaintiff. It was unintentional and the result of Tyson’s negligent failure or inability to protect himself therefrom because both hands were engaged in holding a tray. Yet, by the simple act of placing a handkerchief or hand over his mouth, Tyson might have prevented the spread of the spray and sputum. This overt, positive action is sufficient to satisfy the definition of accident. Injuries resulting from either willful or negligent actions of a fellow employee constitute injuries by accident. Conrad v. Foundry Co., 198 N. C., 723; Chambers v. Oil Co., 199 N. C., 28; Tscheiller v. Weaving Co., 214 N. C., 449.

The Court, in Barron v. Texas Employers Insurance Assn., 36 S. W. (2d), 464 (Texas, 1931), held that exposure of a workman to gas emitted by an oil well “in quantities somewhat larger than the gas to which he had previously been exposed, constituted an injury by accident.” The workman became weak and nauseated from the exposure and suffered pains in his lungs, and later he was found to have tuberculosis. In the opinion of the Court it was said, at p. 465: “A disease acquired in the usual and ordinary course of employment which common experience has recognized to be incidental thereto is an occupational disease and not within the contemplation of the Workmen’s Compensation Act; but an injury resulting from the accident is something which occurs unexpectedly and not in the natural course of events. It is one which may possibly be prevented by the exercise of due care and caution on the part of the employer. Schneider on Compensation Laws, p. 419, sec. 223; Gay v. Hocking Coal Co., 184 Iowa, 949, 169 N. W., 360.” . . . Further in the opinion (at p. 467), “A disease contracted as a direct result of unusual conditions connected with the work and not as an ordinary or reasonably to-be-anticipated result of pursuing the same should be considered an accidental injury.”

To the same effect is Ætna Life v. Harris, 83 S. W. (2d), 1087 (Texas, 1935).

In Dove v. Alpena Leather Co., 164 N. W., 253 (254), (1917), the Michigan Court upheld an award where the plaintiff became infected with a disease as the result of inhaling germs while handling hides in a poorly ventilated room. In the opinion it is said: “The accidental feature of this case is that by chance the septic germ or germs were taken into the respiratory organs and carried into his system, which . . . was unusual in the work at which he was engaged.” Connelly v. Furniture Co., 240 N. Y., 83, 147 N. E., 366, 39 A. L. R., 867; Claess v. Dolph, 161 N. W., 885 (Mich.).

We think the exceptions and assignments of error made by defendants to the evidence are not material. In Tindall v. Furniture Co., 216 N. C., 306 (310), it was said by Devin, J., for the Court: “In accord with the provisions of the Workmen’s Compensation Act, it has been established by the uniform decisions of this Court that the findings of fact made by tbe Industrial Commission, wben supported by competent evidence, must be beld conclusive on appeal, and not subject to review. Lassiter v. Telephone Co., 215 N. C., 227; Porter v. Noland Co., 215 N. C., 724; Plyler v. Country Club, 214 N. C., 453. And tbe application of tbe rule of conclusiveness of tbe findings of tbe Industrial Commission as to controverted issues of fact, wben based on competent evidence, is not defeated by tbe fact that some of tbe testimony offered may be objectionable under tbe technical rules of evidence appertaining to courts of general jurisdiction, as was pointed out in Maley v. Furniture Co., 214 N. C., 589, and Consolidated Edison Co. v. National Labor Relations Board, 305 U. S., 197.”

We tbink tbe bypotbetical questions within tbe rule frequently approved by this Court; they “assume facts which tbe evidence directly, fairly and reasonably tends to establish, and were competent. Tbe probative force was for tbe Commission.” Blassingame v. Asbestos Co., ante, 223 (236).

We tbink that plaintiff’s disease was proximately produced by infection from germs transmitted him in droplets of spray and sputum coughed up and expectorated into bis face and mouth by a negligent fellow employee in tbe course of bis employment by defendant; that tbe unusual circumstances and conditions under which said injury was produced constituted an accident arising out of bis employment; and that tbe evidence fully supports tbe Commission’s findings and award. It is well settled law that tbe Commission could base its findings of fact on circumstantial as well as direct evidence.

In II Schneider, Workmen’s Compensation Law (2d Ed.), part sec. 554, at pp. 2002-3, we find: “ ‘The courts may not interfere with the findings of fact, made by tbe Industrial Commissioner, wben these are supported by evidence, even though it may be thought to be error.’ ‘The rule ... is well settled to tbe effect that, if in any reasonable view of tbe evidence it will support, either directly or indirectly, or by fair inference, tbe findings made by tbe Commission, they must be regarded as conclusive’ (citing a wealth of authorities). Courts cannot demand tbe same precision in tbe finding of Commission as otherwise might be if tbe members were required to be learned in tbe law.’ ” This statement was quoted with approval in Blassingame v. Asbestos Co., supra (233-4).

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.