Murphy v. American Enka Corp.

Per Curiam. The record on appeal fails to disclose error. The plaintiff and the defendant, having accepted the N. C. Workmen’s Compensation Act, are bound by its provisions. C. S., 8081 (k). The act as originally enacted defined “injury” and “personal injury” for which compensation is allowable to “mean only injury by accident arising out of and in the course of employment, and shall not include a *220 disease in any form except where it results naturally and unavoidably from the accident.” 0. S., 8081 (i), (f) ; Public Laws 1929, ch. 120, sec. 2. Construing the act in the case of McNeely v. Asbestos Co., 206 N. C., 568, 174 S. E., 509, a case similar to the present one, Brogden, J., said: “. . . it would seem manifest that our act did not undertake to limit compensation to cases where the injury was begun and completed within narrow limits of time, but that it used the expression 'injury by accident’ in its common sense everyday conception as referring to an injury produced without the design or expectation of the workman. Indeed, sec. 13 of the act declares: ‘No compensation shall be payable if the injury or death was occasioned by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.’ Manifestly, all other accidental injuries, not specifically withdrawn from the benefits of the act, should be logically deemed to fall within its purview.” Thereafter, the Legislature of 1935, by ch. 123, Public Laws 1935, O. S., 8081 (1) and (2), extended the provisions of the act to treat occupational diseases therein described as the happening of an injury by accident within the meaning of the act. The amendment provided in part that “the procedure, practice, and compensation and other benefits provided by said act shall apply in all such cases, except as hereinafter otherwise provided. The word ‘accident’ as used in the Workmen’s Compensation Act shall not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously, or at frequent intervals in- the course of such employment, over extended periods of time, whether such events may or may not be attributable to fault of the employer, and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this act.” If is manifest that the intent of the Legislature in the restriction here put upon the construction of the word “accident” is to limit the occupational diseases over which the provisions of the Compensation Act are extended, and to make clear the diseases intended to be compensable. The plaintiff concedes that the injury of which he complains is not included among the occupational diseases enumerated in the 1935 amendment as being compensable. Eut he contends that the declared construction of the word “accident” eliminates his injury from the provisions of the Compensation Act, and that a common law action against his employer would lie for actionable negligence. This contention is not tenable. C. S., 8081 (r); Public Laws 1933, ch. 449, sec. 11. The case of Lee v. American Enka Corp., 212 N. C., 455, 193 S. E., 809, is decisive of the present appeal. There, Connor, J., speaking to a *221 factual situation similar to tbe instant case, said: “When the plaintiff in this action failed to reject the N. C. Workmen’s Compensation Act as applicable to his employment by the defendant American Enka Corporation, and thereby became subject to its provisions, in consideration of the liability assumed by the said defendant to pay to him compensation for an injury which he might suffer by an accident arising out of and in the course of the employment, without regard to whether the accident and resulting injury were caused by its negligence, he surrendered his right to recover of the defendant damages for an injury caused by the negligence of his employer, and waived his right to maintain an action in the Superior Courts of this State to recover such damages.” The judgment below is Affirmed.