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Bingham v. Smith's Transfer Corp.

Filed: February 2, 1982.

MABLE RUTH BINGHAM, WIDOW: GARY HOWARD BINGHAM, EXECUTOR OF THE ESTATE OF BILL HOWARD BINGHAM, DECEASED, EMPLOYEE, PLAINTIFFS
v.
SMITH'S TRANSFER CORPORATION, EMPLOYER; TRANSPORT INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by plaintiff from Order of the North Carolina Industrial Commission filed 5 November 1980. Heard in the Court of Appeals 11 November 1981.

Morris, Chief Judge. Judges Arnold and Becton concur.

Morris

We note at the outset that plaintiffs have failed to comply with Rule 28(b)(5) of the Rules of Appellate Procedure in that references to pertinent assignments of error and exceptions are not identified by number in their brief. However, in this instance, we will suspend the requirements of Rule 28 pursuant to our residual authority expressed in Rule 2, and discuss the appeal on its merits.

[1] Plaintiffs contend that the deputy commissioner erred in making findings of fact numbers 13, 14 and 15 and in his conclusions of law, and that the Full Commission incorrectly affirmed them. The findings and conclusions upon which the denial of compensation was based are as follows:

13. There was no emergency regarding the trailer or the contents thereof when decedent and the co-employee arrived at the scene. Extra exertion was not required of decedent in connection with pulling the trailer away from the warehouse.

14. Decedent was performing his assigned duties in the customary fashion without interruptions of unusualness on 21 March 1978 when he experienced sudden cardiac death.

15. Decedent did not experience injury by accident arising out of and in the course of the employment on 21 March 1978.

Based upon the foregoing, the deputy commissioner determined that "[d]ecedent did not experience sudden cardiac death by accident arising out of and in the course of the employment . . . because he was performing his assigned duties in the customary

fashion without interruptions of unusualness. N.C.G.S. 97-2(6); . . ." (Citing authority.) The claim was thus denied. The Full Commission, with one dissent, affirmed and adopted the deputy commissioner's opinion as its own.

Plaintiff argues that findings of fact Nos. 13, 14 and 15 "are not supported by the evidence or by any evidence." On the contrary, there is plenary evidence from which it may be inferred that no emergency existed and that no extra exertion was required of the decedent. Although there was a fire at the location, Billy Joe Matthews testified that "[t]he fire was under control from where we was at (sic). There was a cement block wall probably eight-foot high (sic) . . . [T]he fire was burning on the back side of the building from where we was at at that time . . . (sic)." He said that "[t]he fire was over on the back side of the building. I would say just roughly speaking the building was something like eighty or a hundred feet wide. It was long. The fire was concentrated on the back side of the building away from us." The Commission may have concluded from this testimony that the fire was not burning dangerously near the men at that time, and that the remaining flames were isolated from the employees by the concrete block wall. Matthews also testified that decedent drove to the scene of the fire at normal speed. He said that decedent "didn't seem to be excited or nothing (sic). We got on Wendover and he still, everything was real calm, . . ., (sic)." Although there was evidence that the trailer, possibly containing flammable material, was scorched and blackened, Mr. Matthews testified that firemen had sprayed the trailer with water. Plaintiffs offered no direct evidence that decedent was subjected to any physical or emotional stress. In fact, Matthew's testimony suggests that decedent was composed and that he employed the customary switching procedure without strain.

Plaintiffs assert that the circumstances surrounding the execution of the task of moving the trailer created an emergency, and espouse, by virtue of the fact that decedent was pulling a trailer labelled "flammable" away from a burning warehouse, that he was subjected to unusual mental and physical strain resulting in death. They introduced medical testimony regarding decedent's circulatory insufficiency to the heart to bolster this hypothesis. Indeed, ...


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