Southards v. Byrd Motor Lines, Inc.

181 S.E.2d 811 (1971)

11 N.C. App. 583

Charles SOUTHARDS, Employee, v. BYRD MOTOR LINES, INC., Employer, Transit Casualty Company, Carrier.

No. 7118IC243.

Court of Appeals of North Carolina.

June 23, 1971.

*812 Haworth, Riggs, Kuhn & Haworth by Don G. Miller, High Point, for plaintiff-appellee.

Walser, Brinkley, Walser & McGirt by Charles H. McGirt, Lexington, for defendants-appellants.

BROCK, Judge.

Defendants assign as error that the conclusions of law are not supported by *813 the findings of fact. Specific findings of fact by the Industrial Commission, with respect to the crucial facts upon which the question of plaintiff's right to compensation depends, are required. Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619.

"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. Gray v. Durham Transfer & Storage, Inc., 10 N.C.App. 668, 179 S.E.2d 883.

The only facts found by the Commission with respect to circumstances existing at the time of plaintiff's injury were that plaintiff was lifting cases of canned goods for the first time, that the load weighed 120 pounds, that it was a hot day, and that he was hurrying. No finding was made as to the weight which plaintiff was accustomed to lifting unassisted. The mere fact that plaintiff was handling a different commodity than usual, without more, and that the weather was hot, are not enough to satisfy the requirement of an "interruption of the work routine and the introduction of unusual conditions likely to result in unpredicted consequences" stated in Gray, supra. Nor is the mere fact that plaintiff was in a hurry. See Rhinehart v. Roberts Super Market, Inc., 271 N.C. 586, 157 S.E.2d 1. The statement that "[i]n the way and manner set out in finding of fact number two plaintiff sustained an injury by accident arising out of and in the course of his employment resulting in a hernia" was included among both the findings of fact (as finding of fact number three) and, with slightly different wording, the conclusions of law of the Commission. As a purported "finding of fact", the statement is surplusage, because the "way and manner set out in finding of fact number two", to which reference is made in finding of fact number three, does not disclose a compensable accident; as a "conclusion of law", it is unsupported by the findings of fact.

There was evidence in the record from which the Commission could have made the full findings of fact necessary to resolve the controversy, as required by Morgan, supra. This the Commission failed to do.

The award is vacated and the cause is remanded to the Industrial Commission for further proceedings as may be appropriate.

Award vacated and cause remanded.

MORRIS and HEDRICK, JJ., concur.