Petree v. Duke Power Company

150 S.E.2d 749 (1966)

268 N.C. 419

Mrs. Eima Jones PETREE, Widow of Thomas Gilbert Petree, Deceased, v. DUKE POWER COMPANY.

No. 439.

Supreme Court of North Carolina.

November 2, 1966.

*750 H. I. Spainhour and Schoch, Schoch & Schoch, High Point, for plaintiff appellant.

George W. Ferguson, Jr., Carl Horn, Jr., Charlotte, Walser, Brinkley, Walser & McGirt, Lexington, for defendant appellee.

PLESS, Justice:

It is so well settled that if there is any evidence upon which the Commission can base its findings they must be upheld we need cite no authorities. But it is equally correct that the Commission's findings must be supported by some evidence.

To continue with more fundamentals: Deductions and opinions may be based only upon assumed factsnot inferences. And it is certain that inferences cannot be founded upon inferences. Therein lies the weakness and fallibility of the plaintiff's case. Upon a hypothetical question she elicits an opinion from Dr. Max P. Rogers that the deceased came to his death from coming into contact with an electric current which then produced cardiac standstill. But, in order to obtain this answer, the hypothetical question assumes as true that which is not in evidence. In fact it presupposes the result the plaintiff must provethat the deceased came into contact with static electricity. The question to Dr. Rogers was: "Doctor, if the Court should find from the evidence, by its greater weight, that Thomas Petree, in November, 1957, or prior thereto, had suffered a cardiac condition * * * and that the condition continued up to and through, including May 12, 1962, and that at that time he sustained a coronary occlusion having come into contact with electric current, *751 do you have an opinion satisfactory to yourself and to a reasonable medical certainty what could have caused his death?" "A. I feel with reasonable medical certainty an electric shock could have caused his death." Another hypothetical question put to Dr. Rogers included the assumption that "he came into contact with static electricity" which produced the answer that "It would be my opinion that this man came into contact with an electrical current which then produced cardiac standstill resulting in death." Nowhere in the evidence is there anything to support the plaintiff's premise. On the contrary, the evidence is overwhelming (most of it being adduced on cross-examination of the plaintiff's witnesses) that all the current was disconnected which could have gone to the transformer or wires on the pole where Mr. Petree was working.

Summarizing the evidence of every witness to the event offered in behalf of the plaintiff we get the following: Toy Haywood first saw the body of deceased "hanging up there". He heard him groan and saw him on the pole, heard an "unh", but no kind of popping sound, nor did he see any sparks, flashes, or smoke, or smell anything.

Mrs. Bonnie Jordan of the High Point Enterprise arrived with her camera when the ambulance did. She said a Duke Power man arrived and said he did not think there was current, they wanted to be on the safe side but thought the power was cut on that pole, but he wanted to be sure there was no feedback; they were taking every precaution.

Lloyd Sink and a committee who inspected conditions reported that there was no possibility of any electrical connection between the two services leading in the building that would have caused a feedback from where Mr. Petree could have gotten an electrical shock.

The defendant offered positive evidence that the power was found disconnected after Mr. Petree died, and that there was no indication of any current in the transformer or any of the wires leading up to the cross-arm near Mr. Petree's body.

Paul Sink, who was working with the deceased, testified that he had cut off every one of the switches inside the building and that he saw the deceased pull off the three switches on the pole. After that he testified the deceased was just sitting there when he turned around to go back in the building. "When I got back to the switches, I loosened the lock nut and the bushing. Before I done that, though, I taken my bare hands and put on top of the switches, to see if there was any current on them, because I always did that when anybody was helping me, that they wouldn't get hurt. Then I taken the lock nut and bushing off. We dropped the switches down. No electrical current coming from the transformers out on the pole passed through those switches. If there was any coming, it would have to pass through those switches. I put my hands on them. I could have told whether there was any current coming through those switches, if it had been on there. If any current was passing from the old building back out to the position Mr. Petree occupied, it would have had to have passed through those switches. I could not feel any current coming through there. And then I took those switches down. I removed them completely."

He later testified: "I was present when the three inspectors, that is, Melvin Sink, George Jackson, and Lloyd Sink, together with Lindsey Loftin, came to make the inspection of the premises. At that time no changes had been made in any of the lines, wires, fixtures, switches or other electrical equipment, from the time that Mr. Petree was found."

D. E. Rouse, a licensed electrical engineer, and who qualified as an expert in that field, later inspected the premises. In response to a hypothetical question, he testified that in his opinion there was no electricity in any of the lines, wires or other equipment on *752 the pole which Mr. Petree climbed and within his reach which could have produced an electrical shock to his body if he had come in contact with them.

The evidence was to the effect that the deceased had an abnormal condition of the heart, and that from 1956 on he knew he had a bad heart condition and could not carry on his normal activities.

In the face of the convincing evidence that all the power had been disconnected before Mr. Petree died and that all the switches were in the same position and condition when inspected by the committee, and with no evidence to the contrary, the cause of death could not be found to be due to any kind of electrical shock. In view of his long history of a serious heart condition there is little reason to doubt that it caused his death.

We agree with Judge Crissman that there was no competent evidence to support the award of the commission. His judgment is

Affirmed.