Neely v. City of Statesville, 212 N.C. 365 (1937)

Nov. 3, 1937 · Supreme Court of North Carolina

212 N.C. 365

MRS. PINKNEY TOMLIN NEELY, Widow, and Dependents of WILLIAM LLOYD NEELY, Deceased, v. CITY OF STATESVILLE and THE TRAVELERS INSURANCE COMPANY, Carrier.

(Filed 3 November, 1937.)

Master and Servant § 40d—

Death of a fireman from heart failure brought on by excitement and exhaustion in fighting a fire, is not the result of an accident within the meaning of the Workmen’s Compensation Act, C. S., 8081 (i, subsec. f), heat, smoke, excitement, and physical exertion being the ordinary and expected incidents of the employment.

Appeal by plaintiff from Rousseau, J., at August Term, 1937, of Iredell.

Proceeding under North Carolina Workmen’s Compensation Act to determine liability of defendants to widow of William Lloyd Neely, deceased, employee.

The deceased was chief of the fire department of the city of States-ville. On 15 November, 1936, about noon, the fire department was called to the home of Gr. E. French to extinguish fire which was burning in the roof above the attic and the third floor. On arriving at the place of the fire, deceased, assisted by J. R. Benfield, working rapidly, pulled approximately 700 feet of fire hose from a truck. This hose weighed 75 to 80 pounds per length of 50 feet. This was the eustomary and ordinary method of handling the hose under the circumstances. When the truck could not pull the hose up to the house, the men did it. The deceased rushed into the burning building, went up two flights of stairs, ran up one, and then up into tbe attic. Tbe fire was burning very rapidly. There be assisted in pulling a section of bose filled witb water and under pressure tbrougb a window. He remained there for some 10 or IS minutes. During that time be was assisting and directing others in fighting tbe fire. Tbe smoke was very dense and tbe beat intense, and almost unbearable. Frequently tbe men bad to seek fresh air. Tbe roof of that particular part of tbe burning building fell in. Then tbe deceased came out of tbe attic to a landing at bead of stairway. A short time thereafter be collapsed and fell on tbe stairway and died within a few minutes.

Tbe deceased was and bad been for more than two years a sufferer from a chronic cardiac condition. There was considerable excitement incident to tbe fire. The medical testimony was to tbe effect that tbe excitement, tbe unloading of tbe bose in a hurried manner, running up tbe steps and fighting tbe fire aggravated tbe condition witb which deceased was suffering and accelerated bis death; that tbe proximate cause of bis death was excitement, exhaustion, and heart failure.

Tbe Commissioner who beard tbe case awarded compensation. On appeal to Full Commission tbe award was affirmed.

On appeal to tbe Superior Court tbe award was reversed. From adverse judgment in accordance witb decision of tbe court below tbe claimant appealed to tbe Supreme Court and assigned error.

Jaclc Joyner and W. B. Batiley for plaintiffs, appellants.

Sapp & Sapp for defendants, appellees.

WiNBOENE, J.

Tbe sole question on this appeal is: Did tbe death of William Lloyd Neely result from “injury by accident” within tbe meaning of tbe North Carolina Workmen’s Compensation Act? We think not.

There is no controversy as to tbe fact that tbe death arose out of and in tbe course of tbe employment. Hence, inquiry is as to what is such “injury by accident.” C. S., 8081 (i, subsec. f). Tbe meaning of that term is clearly and fully discussed and treated by Stacy, C. J., in tbe case of Slade v. Hosiery Mills, 209 N. C., 823, 184 S. E., 844. Tbe fact situation of that case is on almost “all-fours” witb tbe instant case. Tbe decision there controls here.

Tbe work in which tbe deceased was engaged was tbe usual work incident to bis employment. Tbe surrounding conditions might be expected at a fire. Tbe falling in of tbe roof is a natural result of fire burning there. Heat and smoke are expected. Physical exertion is required in handling tbe bose and fire-fighting equipment. Tbe firemen, of necessity, act hurriedly. We find no evidence of an accident. “There must be an accident followed by an injury by such accident which results in harm to the employee before it is compensable under our statute.” Slade v. Hosiery Mills, supra.

Judgment below is

Affirmed.