Wyatt v. Sharp, 239 N.C. 655 (1954)

March 17, 1954 · Supreme Court of North Carolina

239 N.C. 655

CORA LEE WYATT, Widow of SAM WYATT, Deceased Employee, v. C. R. SHARP, Noninsurer.

(Filed 17 March, 1954.)

1. Master and Servant § 55d—

Where appellant on appeal to the Superior Court does not except to any-finding of the Industrial Commission or to the award, but merely gives notice of appeal for a review as to errors of law, the single question presented to the Superior Court is whether the facts found were sufficient to support the award.

2. Appeal and Error § 6c ^ (2)—

A sole exception to the judgment presents only the question whether the facts found support the judgment.

3. Master and Servant § 40e—

Findings to the effect that the employee suffered an injury arising out of and in the course of the employment, which injury aggravated a preexisting heart condition and caused death, is held to support an award for compensation and burial expenses. G-.S. 97-38.

Appeal by defendant from Clement, J., December Term, 1953, of TbaNsylvakia.

Proceeding under Workmen’s Compensation Act to determine liability of O. R. Sharp (employer and noninsurer) to Mrs. Cora Lee Wyatt, widow and only surviving dependent of Sam Wyatt, deceased employee.

The pertinent facts found by the hearing Commissioner are as follows:

1. That the defendant C. R. Sharp has been regularly engaged in business as a building contractor since January, 1950.

2. That on or about 10 March, 1950, the defendant as an independent contractor, entered into a contract with Pisgah Broadcasting Company to construct a building for it to house its radio broadcasting station.

3. That while Sharp was employed in the performance of his contract with Pisgah Broadcasting Company he was also engaged in constructing other buildings as a building 'contractor.

4. That on 24 April, 1950, and for approximately four weeks prior thereto, the deceased, Sam Wyatt, was employed by the defendant as a carpenter; that the defendant regularly employed Ben Mull, Keith Wright, Fred Wright, and Charlie Scruggs; that the performance of carpentry work was the usual type of employment performed in the course of Sharp’s business or. occup'ation as a building contractor; that on 24 April, 1950, the defendant regularly employed five persons in the conduct of his business as a building contractor; that Sam Wyatt was employed to work eight hours each day, five or five and one-half days per week, at a wage of $1.00 per hour, and that his average weekly wage while employed by the defendant was $40.00.

5. That on 24 April, 1950, Sam.Wyatt, a man 71 years of age and weighing approximately 170 pounds,-was'working as a carpenter on the Pisgah Broadcasting Company building in the course of his employment by the defendant; that he was working on a scaffold approximately six feet above the ground; that as he raised a board to measure it the scaffold fell away from the building; that Wyatt rode down with the scaffold as it fell outward; that he landed in a sitting position on a pile of dirt; and that this constituted ah' injury by accident arising out of and in the course of his employment.

6. Tbat tbe only trauma sustained by Wyatt in bis fall occurred wben be landed on tbe ground in a sitting position; tbat be was dazed for a few moments after tbe fall; tbat be complained of a pain in bis neck; tbat after resting a short time be returned to work for about balf an bour; tbat tbe fall occurred about 8 :30 a.m.; tbat be was taken to tbe office of Dr. Newland about 11:00 a.m. tbe same day; tbat at tbat time be complained of pain in bis neck, back, and cbest and witb shortness of breath; tbat be bad minor contusions on tbe left side of bis back; tbat be was given codeine and sent borne to rest.

7. Tbat Wyatt rested in bed at borne tbe rest of Monday, 24 April, 1950; tbat be continued to complain of pain in bis cbest and back and shortness of breath; tbat about 10:00 p.m. Tuesday, 25 April, 1950, be suffered an acute pain in bis chest witb a smothering spell; tbat be was sent to tbe hospital immediately by Dr. Newland where be was placed in an oxygen tent and remained therein until bis death at 1:15 a.m’. 7 June, 1950; and tbat an autopsy was performed at 9 :45 a.m. tbe same day by Dr. E. D. Peasley in tbe presence of Drs. Newland, Lyday, Sader, and others.

8. Tbat prior to tbe fall suffered by Sam Wyatt, bis heart was enlarged and tbe opening of tbe left branch of the coronary artery was reduced approximately fifty per cent of normal; tbat be bad slight hardening of tbe arteries in tbe brain; tbat he bad been suffering from a condition bordering on heart failure for sometime; that this condition bad given him no prior trouble; and tbat the shock and trauma of tbe fall hereinabove described aggravated and accelerated the pre-existing heart condition so as to basten tbe acute failure of tbe heart which occurred approximately 36 hours after tbe fall and which ultimately resulted in bis death on 7 June, 1950.

9. Tbat tbe death of Sam Wyatt was the result of an aggravation of a pre-existing condition which aggravation was caused by an injury by accident arising out of and in the course of bis employment by tbe defendant C. R. Sharp.

■ Upon these findings of fact tbe bearing Commissioner concluded as a matter of law tbat tbe claimant is entitled to compensation under the provisions of G.S. 97-38 and G.S. 97-39, together witb burial expenses provided by G.S. 97-38. Award was entered accordingly.

Tbe defendant gave notice of appeal to tbe full Commission and filed exceptions to tbe bearing Commissioner’s findings of fact and conclusions of law.

Tbe full Commission reviewed tbe evidence, findings of fact, conclusions of law and tbe award theretofore made, and by a majority vote adopted as its own tbe findings of fact and conclusions of law of tbe bearing Commissioner and issued an award pursuant thereto.

The defendant appealed to the Superior Court only “for errors of law in review of award made by the full Commission.”

The Superior Court affirmed the award granting compensation to plaintiff in all respects and entered judgment in accord with the ruling. To the signing of the judgment the defendant excepts and appeals to the Supreme Court, assigning error.

Fisher & Potts for plaintiff, appellee.

Ramsey ■& Hill for defendant, appellant.

Denny, J.

Here, as in the case of Worsley v. Rendering Co., ante, 547, the defendant entered no exception either to the findings of fact or conclusions of law made by the full Commission. Neither did he except to the award entered. He only gave notice of appeal to the Superior Court for a review as to errors of law.

Therefore, the single question presented to the Superior Court was whether the facts found by the full Commission were sufficient to support the award. No exception having been taken to such findings they are presumed to be supported by the evidence and are binding on appeal. Greene v. Board of Education, 237 N.C. 336, 75 S.E. 2d 129; Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488; Wilson v. Robinson, 224 N.C. 851, 32 S.E. 2d 601; Wood v. Bank, 199 N.C. 371, 154 S.E. 623; Sturtevant v. Cotton Mills, 171 N.C. 119, 87 S.E. 992.

Likewise, when an appeal is taken to the Supreme Court and the sole exception is to the signing of the judgment, the exception only challenges the correctness of the judgment and presents the single question whether the facts found are sufficient to support it. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E. 2d 869; Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609; Worsley v. Rendering Co., supra; Glace v. Throwing Co., Inc., post, 668.

The findings of fact on this record are sufficient to support the judgment below, and the exception thereto must be overruled.

Even so, an examination of the record herein discloses that there is competent evidence to support the Commission’s findings of fact upon which it based its award.

The judgment below is

Affirmed.