Cabe v. Parker-Graham-Sexton, Inc. , 202 N.C. 176 ( 1932 )

OlakksoN, J.

The findings of fact and award by the North Carolina Industrial Commission is as follows: “It is admitted and found as a fact by the Commission that carbon monoxide gas can be produced by the improper combustion of gas and- other explosive liquids and gas detonation; and that it is found in the excessive gas exhaust from a gas engine when idling in large quantities; that it is also found that the explosion of dynamite produces both carbon monoxide and nitrous monoxide gases. Upon consideration of all the evidence the Commission finds as a fact: That the claimant at the time of the alleged accident was in the employ of the defendant. . . . That the accident and injury to the plaintiff arose out of and in the course of his employment and that his death was the direct result of poisoning from carbon monoxide or nitrous monoxide gas involuntarily inhaled in the Cataloochee Tunnel.”

The defendants contend: First, was there sufficient competent evidence to sustain the findings of fact and the award in this case? "We think so. “The findings of fact by the Industrial Commission in a hearing before them is conclusive on appeal when there is sufficient competent evidence to sustain the award.” Williams v. Thompson, 200 N. C., at p. 465.

The defendants contend: Second, was there any evidence of an accidental injury resulting in the death of the deceased? We think so. Charles A. Cabe was working for defendant in the Cataloochee Tunnel, on the night of 23 and 24 July, 1929, and it was contended that he died on 25 July, 1929, from the effects of carbon monoxide or nitrous oxide gas poisoning.

The Cataloochee Tunnel extended from the mouth of Cataloochee Creek to Waterville, a distance of seven miles, and was 12 feet 8 inches high, and 11 feet wide. At the time of the accident, there were four crews, of about thirty men each, working in the tunnel, approximately 2,000 feet apart, and the crews worked day and night. There were two gasoline engines or motor trucks working in the tunnel, one coming in and going out from each end, at intervals of about eighteen minutes. The trucks were ordinary motor trucks, running on an iron track, and pulled from five to ten cars and were used to haul concrete into and muck out of the tunnel. At intervals of about two and a half hours during the day, and "all through the night of 23 July, 1929, thirty or forty shots’ and between twelve and eighteen holes of dynamite were exploded in the tunnel. At the time of the injury to the deceased, the tunnel had been “holed through,” which is to say that the two crews that began to bore the tunnel from each side of the mountain had met in the middle, and all artificial ventilation had been removed. On the morning of 24 July, 1929, shortly after midnight, the deceased, while engaged in operating one of the gas dinkeys or motor trucks, and after having worked in the tunnel since seven o’clock of the evening of 23 July, complained of being sick, and was discovered by his brother lying upon top of the truck inside of the tunnel, while the cars were being loaded with muck. Before quitting time, at about seven o’clock, on the morning of 24 July, he again complained of being sick, and said he woirld bave to be taken borne. Upon arrival at bis borne, a doctor was called, and on tbe following day, 25 July, 1929, be died.

Tbe plaintiffs contended, and offered evidence tending to prove, tbat tbe death of Charles A. Cabe was caused by poisoning from carbon monoxide or nitrous oxide gas. Tbe defendants, on tbe other band, contended tbat tbe death of deceased was not caused by carbon monoxide or other gas poisoning, but tbat bis death was due to some disease. Upon these conflicting contentions, tbe Industrial Commission found as a fact tbat tbe death of tbe deceased “was tbe direct result of poisoning from carbon monoxide or nitrous oxide gas involuntarily inhaled in tbe Cataloocbee Tunnel.” Opinion reported in Yolume II of tbe Opinions of tbe North Carolina Industrial Commission, at page 8.

The findings of fact were sustained by tbe court below, and we think there was ample evidence.

All of tbe evidence which we bave recited above was unobjected to, and it discloses (1) Tbat Charles A. Cabe was a healthy man when be went into tbe tunnel to work at I o’clock tbe evening of 23 July. At 12 o’clock be was sick and continued so until quitting time next morning at 7 o’clock, then be was very sick and wanted bis brothers to burry and get him home. He said “He ivas side on gas, side enough io clie." “He said he ivas side from driving that motor” (tbe gas dinkey). He bad illusions, was unconscious, blind and talking out of bis bead, vomiting, bis coloring and many other known symptoms were those of gas. poisoning. His brother said “He was burning just Mice his lungs had been set on fire” “He coughed up something from his lungs” Dr. Grover C. Wilkes, a physician of more than ordinary experience, testified “I found him in a condition tbat I considered tbe result of carbon monoxide poisoning.” Dr. F. Angel, a physician of great experience, testified: “It is my opinion Charles A. Cabe died from some hind of gas poisoning . . . but he died from gas poisoning.” R. S. Perry, a mining engineer, of much experience,., testified: “Q. From carbon monoxide gasf A. From the effects of one or more poisonous gases. Q. What other? A. Carbon monoxide, nitrous oxide.” (2) Tbat before tbe tunnels bad been “holed through,” there- were artificial measures of ventilating tbe tunnel, but on tbe night of tbe 23d and 24th, and some time prior, they bad been taken out. Tbe gmoke and gases would drift back and forth. About every two and a half hours large quantities of dynamite were put in tbe boles and shot. Tbe muck was blown up by an air gun and loaded on muck cars, a gas dinkey or motor truck run by gasoline, hauled tbe muck cars, and was driven by Charles A. Cabe. There was stench and a deadly gas from muck that was being blown up. There were fumes from the gas dinkey, which sometimes was kept running in the tunnel all the time. Foul and irritating fumes in the tunnel since it had been “holed through.” About midnight Charles A. Cabe was lying on the top of the motor feeling “awful bad,” but he worked on until quitting time, 7 o’clock, then was heard his pitiful wail “sick on gas, sick enough to die.” Three of the men “complained of gas sickness and headaches.” We think there was ample evidence to sustain the ruling of the court below upholding the finding of the Industrial Commission. The defendants introduced evidence, but under our practice in this jurisdiction, it is the. well settled rule and accepted position that, on motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable'inference to be drawn therefrom.

Public Laws 1929, chap. 120, known as the “Workmen’s Compensation Act,” sec. 2(f), is as follows: “Unjury’ and ‘personal injury’ shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.”

We think the evidence clearly indicates that Charles A. Cabe sustained an injury by accident arising out of and in the course of his employment. The evidence negatives that it was an occupational disease. Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill., 378, 120 N. E., 249; City of Joilet v. Industrial Commission, 291 Ill., 555, 126 N. E., 618.

The case of Industrial Commission v. Tolson, 37 Ohio App., 282, 174 N. E., 622, is similar to the case at bar. There a miner who had always been healthy, strong and vigorous, after firing a shot or shots, in the common parlance of mining affairs is known.as the process by which coal is loosened, became ill, left the mine and went to a doctor and from there went to his home and died a few days later. The doctor testified that he was suffering from monoxide poisoning; that he had every appearance of it, a flushed face, and other conditions that follow such poisoning. The principal question with which the court was concerned in this case was whether monoxide poisoning was an accidental injury within the provisions of the Workmen’s Compensation Act. It was held that such an injury was accidental and that poisoning from carbon monoxide gas was not an occupational disease.

The defendants contend: (3) “Is the right to have an autopsy, granted under section 27 of the North Carolina Workmen’s Compensation Act, a matter within the discretion of the North Carolina Industrial Commission and/or can claimants recover where they have denied the right of autopsy?” We think under the facts and circumstances of this case the carrier had no right to have an autopsy.

Laws 1929, supra, sec. 27, the latter part is as follows: “The employer, or the Industrial Commission, shall have the right in any case of death to require an autopsy at the expense of the party requesting the same.”

The defendant, Travelers’ Insurance Company, requested of the North Carolina Industrial Commission an autopsy of Charles 'A. Cabe, deceased. The plaintiffs’ attorneys wrote the Insurance Company refusing to give consent, and said: “Upon due investigation of the law, we are of the opinion that there is a wide difference between an autopsy, pure and simple, and a post-mortem examination to be made after interment. We are, therefore, advising our client to resist your request for disinterment. The body of the deceased was interred on 24 July, 1929, more than one month ago, and in view of the fact that the body was not embalmed, together with sentimental reasons, the widow and other members of deceased’s family, are seriously emphatic in their refusal of a disinterment.”

The defendants contend that “The court erred in denying the defendants’ motion for an autopsy, upon the following findings of fact by the court below: 'That, on 24 August, the defendant carrier requested in writing of John 0.' Buchanan, administrator of the estate óf Charles A. Cabe, deceased, and guardian of his widow, the right to have an autopsy performed; that, on 27 August, Messrs. Alley & Alley, attorneys for the widow and attorneys for the guardian of the widow and the administrator of the estate, wrote the defendant carrier denying the request, and copy of which letter is'hereto attached and made a part of the record hereof; copy of. which letter was forwarded to the Industrial Commission; that there was no formal request made upon the Industrial Commission for an autopsy until the case was called for hearing in Waynesville on 8 November, 1929; that the deceased, Charles A. Cabe, was buried on the evening of 27 July, 1929, in a wooden coffin, and without having been embalmed; that an autopsy at this time would not reveal the cause of the death of Charles A. Cabe, and further that an autopsy on 17 August, the date of the request upon the widow of the deceased, would not have revealed the cause of the death of Charles A. Cabe.’ Upon the foregoing findings of fact, the Commissioner, in his discretion, denies the motion of the defendants for an autopsy, and the defendants duly excepted and assigned error. We do not think the exception and assignment of error can be sustained.

In 17 0. J., at p. 1139-40, under the subject of “Dead Bodies,” we find the following statement: “Except in, cases of necessity or for laudable purposes the policy of the law is tbat tlie sanctity of the grave should be maintained, and that a body once suitably buried should remain undisturbed. . . . There is a distinction between the rights existing prior to burial and those after burial; because after its interment the body is in the custody of the law, and a disturbance of its resting place and its removal is subject to the control and direction of a court of equity in any case properly before it. The right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination. A court will not, however, order a body to be disinterred unless ihei-e is a strong showing that it is necessary and the interests of justice require it." (Italics ours.)

In the case of Thompson v. Deeds, 93 Iowa, 228, 230, 35 L. R. A., 56, it is said: “A proper appreciation of the duty we owe to the dead, and a due regard for the feelings of their friends who survive, and the promotion of the public health and welfare, all require that the bodies of the dead should not be exhumed, except under circumstances of extreme exigency.”

“Civilized countries have always recognized and protected as sacred the right to Christian burial and to an undisturbed repose of the human body when buried. The unauthorized disinterring of the body of a deceased human being is an indictable offense both at common law and by statute, regardless of the motive or purpose for which the act is done.” 8 R. C. L., part sec. 16, at p. 694. C. S., 4320, 4321, 4322; S. v. Wilson, 94 N. C., at p. 1020; Humphrey v. Church, 109 N. C., 132; S. v. McLean, 121 N. C., 589, 42 L. R. A., 721.

The conduct of the Insurance Company, the carrier, in this action, does not appeal to a sense of justice. The carrier requested the North Carolina Industrial Commission to exhume the body of Charles A. Cabe sometime after he was buried. We find nothing in the statute giving the right. All the evidence in this action, talcing a common sense view of the record, shows that the employer did not in the exercise of due care, provide for its employee Charles A. Cabe a safe place to work. He and his brother were both killed by the deadly gas in the tunnel and others were made sick. The expert witnesses of plaintiffs and defendants may differ, but the admitted facts cannot be ignored. From the testimony of plaintiff's expert witnesses, the blood test is not always controlling. We think the Industrial Commission on the facts had the right to deny the Insurance Company, the carrier, an autopsy. Ordinarily this is a matter of discretion when applied for by those having the right.

One of the primary objects and purposes of compensation laws is to grant certain and speedy relief to injured employees, or, in case of death, to their dependents. The deceased was killed about two and a half years ago, and this proceedings was instituted shortly after bis death in an effort to collect the compensation that his widow is entitled to. This delay is unjustifiable. It is not righteous for the carrier to delay payment so as to force an indigent or poor person to take less than the law allows under the act. From a careful review of the record, the judgment below is

Affirmed.