Moore v. Summers Drug Co., 206 N.C. 711 (1934)

June 20, 1934 · Supreme Court of North Carolina

206 N.C. 711

MRS. BERTIE SPAKE MOORE, Widow on HARRY MOORE, Deceased Employee, v. SUMMERS DRUG COMPANY, Employer, and GREAT AMERICAN INDEMNITY COMPANY, Carrier.

(Filed 20 June, 1934.)

1. Evidence H f — Physician may testify as to symptoms related by patient npon examination of patient prior to his death.

In this hearing under the Compensation Act a physician testified that he had attended the injured employee immediately prior to his death and that the employee said he had first felt pain around his heart prior to the time of the injury made the basis of the claim. Belá, the testimony of the declaration as to bodily feeling was competent, it being without the boundary of the hearsay rule.

2. Master and Servant E b — Evidence held sufficient to support finding that injury did not arise from accident in course of employment.

In this hearing under the Compensation Act there was evidence that deceased died from heart trouble, that immediately prior to the time he was stricken, deceased had helped move a trunk from one bus to another and that he was stricken with heart trouble while carrying a heavy box of medicine from the bus to his employer’s drug store, with testimony of' a physician who had attended deceased prior to his death that such exertion could have been a factor in causing the heart trouble, but that deceased had told him upon his examination of deceased prior to his death that he had first felt pain around his heart when he had come from the post office prior to moving the boxes. Held, there was sufficient, competent evidence to support the finding of the Industrial Commission that deceased’s death was not caused by accident in the course of his employment, although the evidence would permit an inference to the contrary.

3. Master and. Servant E i—

The findings of fact of the Industrial Commission upon conflicting, competent evidence are conclusive upon appeal.

Schenok, "J., took no part in the consideration or decision of this case.

Civil action, before Harding, J., at December Term, 1933, of GASTON.

Tbe plaintiff, the widow of the deceased employee of the defendant, filed a claim with the Industrial Commission for compensation. The hearing commissioner found that Harry Moore, at the time of his death was employed by the defendant Drug Company. Pertinent excerpts from such findings are as follows:

“On 15 July, 1932, sometime past the middle of the afternoon, the northbound and the southbound buses met at Kings Mountain. There was a box to be transferred from one bus to another as well as a box of drugs to be carried from one of the buses to the drug store. The deceased, along with one of the bus drivers, helped transfer a box or trunk weighing about a hundred pounds from one bus to another, having some little trouble in getting the box on top of the bus to which it was transferred. After doing this the deceased picked up a box of drugs weighing about eighty-five pounds and carried the box several feet into the drug store. He began to feel bad shortly after doing this work and had a pain around his heart and couldn’t breathe well. He received the attention of some of his fellow employees and later a doctor. Some few minutes after the doctor left the drug store the deceased was again seized with this trouble around his heart and with difficulty in breathing and died in the drug store. The doctor testified that the deceased, in his opinion, died of coronary thrombus and the physician, during his testimony, testified that the deceased made a statement to him before he died-that he first felt pain about his heart and chest while he was returning from the post office. The evidence discloses that the deceased went to the post office before doing any of the work above referred to. . . . Only one doctor testified in the case and the doctor gave it as his opinion that it was possible for the work performed just prior to the death by the deceased could have played some part in the heart trouble that killed him. ... In this case the commissioner, as much as he would like to award compensation to the wife and six-year-old child, is of the opinion that the burden has not been sustained. Compensation must therefore be denied and it is so ordered.”

Upon appeal to the full Commission the said Commission declared as follows: “Upon the finding that the deceased did not sustain an injury by accident which arose out of and in the course of his employment on 15 July, 1932, and that the death of the deceased was the result of a diseased condition that did not result unavoidably from the accident, the full Commission directs that an award issue denying compensation and dismissing the case.”

Thereupon the claimant appealed to the Superior Court. After hearing the evidence and the argument the trial judge decreed: “Therefore, the court finds that upon the record there is sufficient and competent evidence to support tbe following findings: (1) Tbat Harry Moore, deceased, was employed as pharmacist by tbe defendant, Summers Drug Company, on 15 July, 1932, at a salary of $35.00 per week; (2) Tbat tbe deceased, Harry Moore, sustained an injury by accident wbicb arose out of and in tbe course of bis employment on 15 July, 1932; (3) Tbat Harry Moore, deceased, died on said date and bis death was tbe result of said accidental injury; (4) Tbat bis widow, Mrs. Bertie Spake Moore, and one child, age six years, are tbe dependents. . . . On tbe foregoing findings an award shall issue from tbe North Carolina Industrial Commission to tbe effect tbat Harry Moore, deceased, sustained an injury by accident wbicb arose out of and in tbe course of bis employment on 15 July, 1932, and tbat tbe death of tbe deceased resulted unavoidably from tbe accident and tbat tbe defendants shall pay to tbe dependents tbe compensation to wbicb they are entitled under tbe law. It is now, therefore, ordered and adjudged tbat tbe findings of fact and conclusions of law and tbe decision and award based thereon, of tbe North Carolina Industrial Commission be overruled, and said findings of fact and conclusions of law, tbe decision and award, aforesaid, are hereby overruled, reversed and set aside,” etc.

From tbe foregoing judgment, tbe defendants appealed.

E. A. Harrill for plaintiff.

Emery B. Denny for defendants.

BbogdeN, J.

Tbe claimant contended tbat tbe death of tbe employee was caused and brought about by strain and over-exertion in attempting to assist tbe bus driver in handling a heavy box, and while in tbe course of bis employment. Tbe defendant contended tbat tbe death was caused by heart disease. There was evidence tbat tbe deceased bad returned from tbe post office immediately preceding tbe effort to lift tbe heavy box. When tbe physician arrived and questioned tbe deceased as to bis symptoms, be stated tbat “be first noticed tbe pain in bis chest while coming from tbe post office.” This statement was competent for tbe reason tbat it was a declaration as to bodily feeling, and hence without tbe boundary of tbe hearsay rule. Bryant v. Construction Co., 197 N. C., 639, 150 S. E., 122.

Therefore, it is obvious tbat more than one inference of fact could be drawn from tbe evidence. It has been held with unbroken uniformity tbat tbe findings of fact by tbe Industrial Commission from conflicting evidence, are conclusive upon appeal to tbe Superior Court. One of tbe recent utterances upon tbe subject is found in Kenan v. Motor Co., 203 N. C., 108, 164 S. E., 729, in wbicb tbe Court said: “It is well settled tbat if there is any competent evidence to support tbe findings of fact of the Industrial Commission, although this Court may disagree with such findings, this Court will sustain the findings of fact made by the Commission,” etc. Aycoch v. Cooper, 202 N. C., 500, 163 S. E., 569; Greer v. Laundry, 202 N. C., 729, 164 S. E., 116; Leggett v. Cramerton Mills, ante, 708; Smith v. Hauser and Co., ante, 562.

Eeversed.

Sohenok:, J., took no part in the consideration or decision of this case.