Bellamy v. Morace Stevedoring Company

128 S.E.2d 395 (1962)

258 N.C. 327

Hiram Van BELLAMY, Employee, v. MORACE STEVEDORING COMPANY, Employer; Travelers Insurance Company, Carrier.

No. 594.

Supreme Court of North Carolina.

December 12, 1962.

*396 Poisson, Marshall, Barnhill & Williams, by Lonnie B. Williams, Wilmington, for defendants-appellants.

Bowman & Prevatte, by James C. Bowman, Southport, for plaintiff-appellee.

*397 HIGGINS, Justice.

The claimant testified as a witness in his own behalf: "I remember the morning of March 3, 1960. I was sick a little bit before I left home and then I vomited and I got all right, and then I went * * * down to Sunny Point * * * I moved the first net two or three feet * * * just enough to get by * * * there were two of them * * * Well, when I got so I started to moving it good, I taken a pain in my breast, so I went in the box car and told this man I was sick. He said go to the office, so I did so, * * * I vomited and was just as sick as I could be. * * * I was hurting in my breast and arm."

On cross-examination, he testified: "When I moved them, I mean I rolled them. * * * I had not rolled nets too many times before. Its part of a carpenter's duties if he is asked to. * * * There was one man helping me roll the net. * * * I was rolling the net, * * * There was no lifting involved."

Claimant was a carpenter, 65 years of age. The defendant's evidence indicated that the work of moving nets, etc., was usually done by longshoremen. However, this duty was sometimes assigned to carpenters. In moving a net, "it is rolled similar to a barrel."

The claimant's medical expert, a specialist in the field of "heart conditions," in response to a hypothetical question involving the effect of physical exertion, said: "I think it might have been a precipitating or a hastening factor in this situation. As far as being the underlying cause, generally speaking, it is not. I don't think it would be in this case. * * * This man also, besides being at an age where he had a fair amount of arteriosclerosis, had diabetes, which accelerates the arteriosclerotic hardening process, or narrowing or hardening of the arteries. So that actually it happens that people who have myocardial infarctions, such as he did, at least half of them have them when they are at rest * * * or when they are in bed sleeping, I should saythe other half have them when they are awake. So, generally speaking, activity has nothing to do with the production of a myocardial infarction. Now, it is true that a person who is on the verge of having such an attack, by strenuous exertion this could be accelerated or precipitated." Dr. Tidler testified the claimant told him three men were helping him.

We conclude that so much of finding of fact No. 4 as relates to the heavy and strenuous lifting usually done by younger and much stronger men does not find support in the evidence. Finding No. 5 relates to diagnosis and treatment after the disability. Finding No. 6 must be treated as a conclusion and not a finding of fact.

This case is very similar to, no stronger than, and governed by, the decision in Lewter v. Abercrombie Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410, from which we quote:

"Ordinarily a death from heart disease is not an injury by accident arising out of and in the course of the employment, nor an occupational disease, so as to be compensable under our statute. * * *

"There was medical evidence to the effect that the fire (in the theater where she worked) and Mrs. Lewter's excitement would have aggravated her condition to such an extent as to cause the cerebral hemorrhage from which she died.

"In our opinion, there is no evidence tending to show that Mrs. Lewter died as a result of an injury, as those words are used in our Workmen's Compensation Act. This is in accord with our decisions in Neely v. City of Statesville, supra; * * * (212 N.C. 365, 193 S.E. 664)." Gilmore v. Board of Education, 222 N.C. 358, 23 S.E.2d 292; McGill v. Lumberton, 215 N.C. 752, 3 S.E.2d 324.

The evidence before the Industrial Commission, the Superior Court, and now before us, was insufficient to support any finding the claimant was engaged in strenuous lifting *398 not usually a part of his customary duties, or that he sustained any injury by accident arising out of and in the course of his employment.

The Superior Court will remand the proceeding to the North Carolina Industrial Commission with instructions to enter an award disallowing the claim.

Reversed.