Harding v. THOMAS AND HOWARD COMPANY

124 S.E.2d 109 (1962)

256 N.C. 427

John Allen HARDING, Employee, Plaintiff, v. THOMAS AND HOWARD COMPANY, Employer; Employers Mutual Casualty Company, Carriers.

No. 29.

Supreme Court of North Carolina.

February 28, 1962.

*110 John A. Wilkinson, Washington, for plaintiff, appellee.

Ward and Tucker, Washington, for defendants, appellants.

HIGGINS, Justice.

The North Carolina Workmen's Compensation Act does not provide compensation for injury, but only for injury by accident. G.S. § 97-2(6). The term "accident" as used in the Compensation Act has been defined by this Court as (1) an unlooked for and untoward event which is not expected or designed by the injured *111 employee; (2) a result produced by a fortuitous cause. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231; Love v. Town of Lumberton, 215 N.C. 28, 1 S.E.2d 121; Slade v. Hosiery Mills, 209 N.C. 823, 184 S.E. 844; Edwards v. Piedmont Publishing Co., 227 N.C. 184, 41 S.E.2d 592.

In Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605, this Court approved the award of compensation by holding the evidence of injury by accident was sufficient to support the commission's finding and to take the case out of the rule followed in Slade v. Hosiery Mills, supra, and Neely v. Statesville, 212 N.C. 365, 193 S.E. 664. "In the case at bar (Moore v. Engineering & Sales Co.) 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." (1) Other employees who had assisted in the work had been discharged. The plaintiff and one helper remained and were required to lift a pipe weighing 400 to 450 pounds. (2) The claimant had never handled pipes of that weight.

Quoting further from Moore v. Engineering & Sales Co., "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."

To sustain an award of compensation in ruptured or slipped disc cases the injury to be classed as arising by accident must involve more than merely carrying on the usual and customary duties in the usual way. Turner v. Burke Hosiery Mills, 251 N.C. 325, 111 S.E.2d 185; Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614. Accident and injury are considered separate. Ordinarily, the accident must precede the injury. Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 98 S.E.2d 289, and cases cited. Accident involves the interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. Faires v. McDevitt & Street Co., 251 N.C. 194, 110 S.E.2d 898. In Searcy v. Branson, 253 N.C. 64, 116 S.E.2d 175, the evidence disclosed the claimant, a carpenter, was assisting in the erection of a prefabricated chimneysomething he had not done before. The claim was contested not on the question of accident, but on the question whether the injury arose out of and in the course of the employment.

Complaint is sometimes made that this Court has placed too much emphasis on "accident" and too little on "injury." Our interpretation of the Workmen's Compensation Act is well known to the legislative department of the State. If and when a change is desirable, the General Assembly has ample power to make it. Hensley v. Farmers Federation Cooperative, supra; Holt v. Cannon Mills Co., supra. Tested by the rules adhered to in previous decisions, we must hold the evidence is insufficient to sustain a finding the claimant suffered injury by accident. The Superior Court will remand the cause to the North Carolina Industrial Commission for the entry of an order denying compensation.

Reversed.

WINBORNE, C. J., not sitting.