West v. North Carolina Department of Conservation & Development

Baiíniitll, J. The record is devoid of any evidence tending to show that the deceased died as the result of an injury by accident. Neither an accident nor an injury, as those terms are used in the Workmen’s Compensation Act, is made to appear. So far we have not held that mere resistance by one who is being taken into custody by an arresting officer constitutes an accident. The resulting exertion on the part of the officer, required in the performance of his duties, may be considered as an incident of his occupation. Be that as it may, the question does not arise on this record. It is true that one witness stated that the deceased told her: “I have had a time all the morning, up the creek with three men resisting me without a fishing license, three men who had no license, and I had to come in and get warrants for them.” Even so, the nature, extent, and effect of the resistance are not disclosed. Furthermore, this statement *234 of a deceased person was not brought within the terms of G. S. 28-173 and was inadmissible. The finding of a material fact by the commission, to be sustained, must be supported by some competent evidence. Logan v. Johnson, 218 N. C., 200, 10 S. E. (2d), 653; Gilmore v. Board of Education, 222 N. C., 358, 23 S. E. (2d), 292; Bank v. Motor Co., 216 N. C., 432, 5 S. E. (2d), 318. Heart disease is not an occupational disease. Nor may it ordinarily be treated as an injury. G. S. 97-53. Hence death therefrom is not compensable. Neely v. Statesville, 212 N. C., 365, 193 S. E., 664; Slade v. Hosiery Mills, 209 N. C., 823, 184 S. E., 844; Gilmore v. Board of Education, supra. Gabriel v. Newton, 227 N. C., 314, 42 S. E. (2d), 96, relied on by plaintiff, is not in conflict with this conclusion. There, more than the ordinary exertion incident to the discharge of the duties of an officer was made to appear. The elevator was out of order. As a result, the officer was required to carry a drunken prisoner up three flights of steps. This was the unusual and exceptional. As a result, the muscles of his heart and blood vessels were unduly strained and stretched, causing acute dilatation of the heart. This was the injury. As the conclusion of the Industrial Commission was the only permissible inference to be drawn from the evidence, the order denying the award was without error. The judgment of the court below approving the same must be Affirmed.