Gray v. Durham Transfer and Storage, Inc.

179 S.E.2d 883 (1970) 10 N.C. App. 668

Sam GRAY, Employee, Plaintiff,
v.
DURHAM TRANSFER AND STORAGE, INC., Employer, U. S. Fire Insurance Co., Carrier, Defendants.

No. 7114IC40.

Court of Appeals of North Carolina.

March 31, 1970.

Brooks & Brooks, by Eugene C. Brooks, III, Durham, for plaintiff.

Spears, Spears, Barnes & Baker, by Alexander H. Barnes, Durham, for defendants.

BROCK, Judge.

As can be seen from Finding No. 5 quoted above, the Industrial Commission found that plaintiff was not injured by accident arising out of and in the course of his employment, because the only thing different or unusual about the incident to distinguish it from any other such lifting was the occurrence of pain.

It is plaintiff's contention that this ruling is error. He contends that, where the injury itself is unexpected, it constitutes an injury by accident; and that no external, fortuitous occurrence is necessary. Plaintiff cites and relies upon Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231. Plaintiff argues that although the Supreme Court has made what appears to be alternative interpretations of the statute (G.S. § 97-2(18)) it has not specifically overruled the holding in Smith. In Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 98 S.E.2d 289, the Court, referring to the language in Smith had this to say:

"Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231, was decided in 1940. The Court was again called upon to determine liability in hernia cases. Factually the case came within the rule announced by the Court in Moore v. Engineering & Sales Co., supra [214 N.C. 424, 199 S.E. 605], and hence outside of the rule laid down in the Slade [v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844] and Neely [v. City of Statesville, 212 N.C. 365, 193 S.E. 664] cases, supra. This was frankly recognized by Justice Seawell, who wrote the opinion. Having announced the fact, he uses language which lends support to the argument that the Court intended to adopt a new rule and hold that injury and accident were equivalent, at least in hernia and similar cases involving bodily infirmities. That the Court did not intend to abandon the rule announced in previous decisions that compensation could not be awarded unless the injury was produced by an accident seems apparent."

Regardless of how one reads the factual situation and the opinion in Smith v. Cabarrus Creamery Co., supra, the language of Hensley v. Farmers Federation Cooperative, supra, decided approximately seventeen years later, makes it clear that the Supreme Court of North Carolina does not consider the law to be as contended by plaintiff. It is perfectly clear in Hensley that the Court interprets the statute as requiring an interruption of the usual work routine or the introduction of some new circumstance not a part of the usual work routine before a compensable injury arises in a hernia case. This view requiring an unusual or fortuitous occurrence was reaffirmed in Lawrence v. Hatch Mill, 265 N. C. 329, 144 S.E.2d 3, and again in Rhinehart v. Roberts Super Market, 271 N.C. 586, 157 S.E.2d 1. It therefore seems that the interpretation of the statute now proposed by plaintiff has been clearly and consistently repudiated by the Supreme Court since 1957.

"Accident" as used in our statute (G.S. § 97-2(18)) involves the interruption of the work routine and the introduction of unusual conditions likely to result in unpredicted consequences. A hernia suffered by an employee does not arise by accident if the employee at the time was merely carrying out his usual and customary duties in the usual way. Lawrence v. Mill, supra.

Under the findings of fact in this case we hold that plaintiff was not injured by accident as contemplated by G.S. § 97-2(18), and therefore, his injury is not compensable.

Affirmed.

MORRIS and VAUGHN, JJ., concur.