Westbrook v. Highview Inc. , 42 Ga. App. 834 ( 1931 )

Stephens, J.

1. A hernia, to be compensable under the workmen’s compensation act, must result from “an injury by accident,” arising out of and in the course of the employment. There must be “an injury resulting in hernia.” The hernia must have “immediately followed an accident.” See section 2 (d, e) workmen’s compensation act. Ga. L. 1920, p. 167; Ga. L. 1922, p. 189.

2. An act done by an employee in the ordinary performance of the duties for which he is employed, when done in a manner not unusual or unexpected, but in the manner ordinarily required and expected of him in the performance of his duties, does not constitute an injury by accident; and a hernia resulting to the employee from the performance of such act does not result from an injury by accident. See, in this connection, U. S. Mutual Acc. Asso. v. Barry, 131 U. S. 100 (9 Sup. Ct. 755, 33 L. ed. 60) ; Atlanta Accident Association v. Alexander, 104 Ga. 709 (30 S. E. 939, 42 L. R. A. 188) ; Fulton v. Metropolitan Casualty Co., 19 Ga. App. 127 (91 S. E. 228) ; 1 C. J. 394; 14 R. C. L. 419.

3. Where an employee’s duty is to build and construct cabinets and, with the help of another person, put them in position, and where while in thus putting one of the cabinets into position the employee does so in the ordinary manner for the performance of this duty and in a manner not unusual or unexpected in its performance, and does not exert or strain himself in a manner which is unusual or unexpected in the performance of this duty, but in the performance of his duty of sliding the cabinet into place he exerts himself only in the manner ordinarily required and expected of him, and a hernia results, the hernia does not result from an injury by accident. Had the employee, while thus engaged in sliding the cabinet into position, fallen or stumbled, or had the cabinet fallen upon him, or had he sustained any other “mishap not expected or designed” (see 19 A. L. R. 102, 103), and a hernia resulted therefrom, a different question might have been presented.

4. The award of the industrial commission denying compensation was authorized. The superior court did not err in affirming the judgment of the industrial commission.

Judgment affirmed.

Bell, J., concurs, Jenkins, P. J., dissents.