Gilmore v. Hoke County Board of Education , 222 N.C. 358 ( 1942 )

Winborne, J.

These questions present points decisive of this appeal: (1) If it be conceded, that on 17 July, 1939, Dean Gilmore suffered injury by accident arising out of and in the course o'f employment by Hoke County Board of Education, is there sufficient competent evidence to support a finding of fact that his death on 28 February, 1940, resulted proximately from such injury? (2) If not, and it be conceded that his death, on 28 February, 1940, did not result proximately from accident which happened on 17 July, 1939, but did occur while total disability continued and within six years after the accident, is the employer liable for compensation for his death under the provisions of-section 38 of the North Carolina Workmen’s Compensation Act, Public Laws 1929, chapter 120?

Both questions must be answered in the negative.

(1) In considering the first question it is necessary to ascertain when, under the North Carolina Workmen’s Compensation Act, compensation is allowable for death of employee. Adverting to provisions of the Act, defining words used therein, unless the context otherwise requires, “the term 'death’ as a basis for a right of compensation means only death resulting from an injury,” section 2 (j), and '"injury’ . . . shall mean only injury by accident arising out of and in the course of employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.” Section 2 (f). And in providing compensation for death, the Act, section 38, prescribes that “if death results proximately from the accident and within two years thereafter, and while total disability continues, and within six years after the accident, the employer shall pay or cause to be paid ... to the dependents of the employee ... a weekly payment equal to sixty per cent of his average weekly wage,” etc.

From these provisions the legislative intent is clear that, under the North Carolina Workmen’s Compensation Act, the employer shall pay compensation for death of employee only when the death results proximately from injury by accident arising out of and in the course of employment. The injury by accident must be the proximate cause, that is, an operating and efficient cause, without which death would not have occurred. And to establish a real relation of cause and effect between an injury to, and subsequent death of employee, the evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation between the injury and subsequent death.

When the evidence in the case in hand is tested by these rules the causal relation between the injury to Dean Gilmore on 17 July, 1939, and his death on 28 February, 1940, is conjectural. All the medical testimony is to the effect that Gilmore had general arteriosclerosis and arthritis, diseases “which would eventually kill him,” and that he had an enlarged prostate gland, but there is no evidence that these diseases were caused by the injury to his leg. On the contrary, the evidence tends to show that they were of long standing and gradual development. The evidence is that arteriosclerosis, hardening, of the arteries, and myocarditis were “the immediate causes” — “the primary causes” of his death, and that multiple arthritis was a contributing cause. And in the light most favorable to claimant, the evidence is that if the accident did contribute at all, it was, in the opinion of Dr. O’Briant, who attended Gilmore in his last illness, a remote cause — “remote . . . not immediate or direct cause.” Even so, this opinion is, as the doctor said, based upon the assumption that there was retention of urine in the bladder. And the only evidence of such retention related to the period when Gilmore was confined in the hospital, July 17 to July 30, for afterwards, when Dr. Brown last saw him, before he went to Duke, he was not complaining of his bladder trouble, and Dr. O’Briant did not treat him for it in his last illness.

The cases of Williams v. Thompson, 200 N. C., 463, 157 S. E., 430; Ciarle v. Cotton & Woolen Mills, 204 N. C., 529, 168 S. E., 816; and Doggett v. South Atlantic Warehouse, 212 N. C., 599, 194 S. E., 111, are distinguishable in factual situation from that in present case.

(2) As to second question, the fundamental condition upon which compensation may be allowed under section 38 of the North Carolina Workmen’s Compensation Act is that death must have resulted “proximately from the accident.” Under that section there are two conditions precedent to allowance of compensation: (1) If death results proximately from the accident and within two years thereafter, compensation will be granted; (2) if death results proximately from the accident, while total disability still continues and within six years after the accident, compensation will be granted. But, in either event, whether death occurs within two years after the accident, or while disability still continues, and within six years after the accident, compensation is only allowed for death which “results proximately from the accident.”

Under these rules, death having occurred within two years after the accident, the case in hand is tested by the first condition. The second condition is not applicable. Hence, holding as we do, upon evidence of record, that the death of Gilmore did not result proximately from the accident, compensation is not allowable.

While the North Carolina Workmen’s Compensation Act should be liberally construed so as to effectuate the legislative intent which is to be ascertained from the wording of the Act, the rule of liberal construction cannot be extended beyond the clearly expressed language of the Act. “It is ours to construe the laws and not to make them,” Hoke, J., in S. v. Barksdale, 181 N. C., 621, 107 S. E., 505; Wilson v. Mooresville, ante, 283, and cases cited.

It is proper to note that the Industrial Commission, finding that notice of claim therefor as required by the statute was not filed by the employee or by claimants, denied an award for disability between the date of injury and date of death of employee, and for medical expense, and that claimants have not appealed.

The judgment below is

Reversed.