{ "id": 8548940, "name": "MARY THOMPSON, Widow & Guardian Ad Litem of TORI ANN THOMPSON and TRACY THOMPSON, Minor Children; A.W. HUFFMAN, JR., Administrator of the Estate of JOHN H. THOMPSON, DECEASED, Employee, Plaintiffs v. LENOIR TRANSFER COMPANY, Employer; and AETNA INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Thompson v. Lenoir Transfer Co.", "decision_date": "1980-08-05", "docket_number": "No. 7910IC1060", "first_page": "47", "last_page": "56", "citations": [ { "type": "official", "cite": "48 N.C. App. 47" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 97-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "196 S.E. 872", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "874" } ], "opinion_index": 0 }, { "cite": "213 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628859 ], "year": 1938, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0504-01" ] }, { "cite": "91 S.E. 1032", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "1033" } ], "opinion_index": 0 }, { "cite": "173 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270039 ], "year": 1917, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc/173/0339-01" ] }, { "cite": "173 S.E. 2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1970, "pin_cites": [ { "page": "328" }, { "page": "328", "parenthetical": "quoting from the Supreme Court of Florida." }, { "page": "328" }, { "page": "330" }, { "page": "330" } ], "opinion_index": 0 }, { "cite": "276 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561636 ], "weight": 5, "year": 1970, "pin_cites": [ { "page": "426" }, { "page": "427" }, { "page": "426" }, { "page": "429" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0417-01" ] }, { "cite": "6 N.W. 2d 199", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1942, "pin_cites": [ { "parenthetical": "a decision which applied Sponatski" } ], "opinion_index": 0 }, { "cite": "241 Wis. 462", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8681029 ], "year": 1942, "pin_cites": [ { "parenthetical": "a decision which applied Sponatski" } ], "opinion_index": 0, "case_paths": [ "/wis/241/0462-01" ] }, { "cite": "15 A.L.R. 3d 616", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "pin_cites": [ { "page": "622" }, { "page": "622", "parenthetical": "a decision which applied Sponatski" } ], "opinion_index": 0 }, { "cite": "180 N.E. 2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "482" } ], "opinion_index": 0 }, { "cite": "24 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2800975 ], "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0103-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "25 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "223 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604451 ], "year": 1943, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0233-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 812, "char_count": 17651, "ocr_confidence": 0.708, "pagerank": { "raw": 3.471256158501249e-07, "percentile": 0.8812477098085642 }, "sha256": "a897c5a5a9da29addd93068f6d99c7b4dccf6d0d22b04fbd8c90c9ea8144bea7", "simhash": "1:d70fcb8295b9d2ea", "word_count": 2912 }, "last_updated": "2023-07-14T21:18:20.579461+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Martin (Harry C.) concur." ], "parties": [ "MARY THOMPSON, Widow & Guardian Ad Litem of TORI ANN THOMPSON and TRACY THOMPSON, Minor Children; A.W. HUFFMAN, JR., Administrator of the Estate of JOHN H. THOMPSON, DECEASED, Employee, Plaintiffs v. LENOIR TRANSFER COMPANY, Employer; and AETNA INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "CLARK, Judge.\nWe note at the outset that defendants have attempted to place their own exceptions in the record without formally including cross-assignments of error in the record as required by Appellate Rule 10(c)-(d). We therefore decline to consider these exceptions.\nThe first issue presented in this case is whether the Hearing Commissioner erred in refusing to admit some evidence of the physical and mental condition of the deceased employee. Without setting out each excluded item, we hold that it was error to exclude such evidence of decedent\u2019s suffering. First, the evidence is relevant because appellants\u2019 theory is that the work-related injury caused the deceased such pain and depression that the deceased was caused to commit suicide. Even though pain and suffering are not compensable under our Workers\u2019 Compensation Act, Branham v. Denny Roll & Panel Co., 223 N.C. 233, 236, 25 S.E. 2d 865, 867 (1943), and even though N.C. Gen. Stat. \u00a7 97-12(3) specifically forbids recovery under our Act where an individual has intentionally killed himself, the appellants\u2019 theory is nonetheless one which is cognizable by our Courts. As stated by Justice Sharp (later Chief Justice):\n\u201cTo say, as a matter of law, that one who intentionally takes his own life acts willfully is to ignore \u2018the role which pain or despair may play in breaking down a rational, mental process.\u2019 Harper v. Industrial Commission, 24 Ill. 2d 103, 107, 180 N.E. 2d 480, 482. Annot., 15 A.L.R. 3d 616, 622. \u2018If the sole motivation controlling the will of the employee when he knowingly decides to kill himself is the pain and despair caused by the injury, and if the will itself is deranged and disordered by these consequences of the injury, then it seems wrong to say that this exercise of will is \u201cindependent,\u201d or that it breaks the chain of causation. Rather, it seems to be in the direct line of causation.\u2019 1A Larson\u2019s Workmen\u2019s Compensation Law \u00a7 36.30 (1967); Annot., 15 A.L.R. 3d 616, 622. As Fowler, J., pointed out in his dissent in Barbour v. Industrial Commission, 241 Wis. 462, 6 N.W. 2d 199 (1942) (a decision which applied Sponatski), when suicide is the \u2018end result\u2019 of an injury sustained in a compensable accident, it is \u2018an intervening act but not an intervening cause ... .\u2019 \u201d\nPetty v. Associated Transport, Inc., 276 N.C. 417, 426, 173 S.E. 2d 321, 328 (1970). Petty made it clear that mental derangement maybe caused by the consequences of the injury, including pain and despair, as well as by the injury itself. In Petty the Court also emphasized that the evidence in that case tended to show that Petty\u2019s death was a result of the \u201cagitated depression\u201d resulting from the accident and the Court rejected the Commissioner\u2019s finding that there was no causal relation between the accident and death.\nSecond, even though much of the proffered testimony was hearsay, most of the testimony would come within the well-recognized exception for a person\u2019s statement as to then-existing-pain and other physical discomfort. 1 Stansbury\u2019s N.C. Evidence \u00a7 161 (Brandis rev. 1973). Moreover, regardless of whether such evidence is deemed to be an exception to the hearsay rule, \u201c[i]t is very generally held that when the physical condition of a person is the subject of inquiry, his declarations as to his present health, condition of his body, suffering and pain, etc. are admissible in evidence.\u201d Howard v. Wright, 173 N.C. 339, 342, 91 S.E. 1032, 1033 (1917); Munden v. Metropolitan Life Insurance Co., 213 N.C. 504, 506, 196 S.E. 872, 874 (1938).\nAs a general rule, \u201c[t]he burden is on the appellant not only to show error, but that the alleged error was prejudicial and amounted to the denial of some substantial right,\u201d 1 Strong\u2019s N.C. Index 3d Appeal and Error \u00a7 46.1 (1976), and the \u201cexclusion of evidence, including the testimony of witnesses, cannot be held prejudicial when the record fails to show what evidence would have been introduced or what testimony would have been given by the witness.\u201d 1 Strong\u2019s N.C. Index 3d Appeal and Error \u00a7 49.1 (1976). In the instant case, however, we cannot say that plaintiff has failed to show prejudicial error because in several instances the proffered testimony does appear in the record. Of particular importance is the testimony of Dr. Brown, in answer to a hypothetical question, that the pain and despair experienced by decedent as a result of the accident could be a cause of his suicide. The doctor\u2019s conclusion was allowed into evidence by the Commissioner on the condition that competent evidence was presented to support the hypothetical question submitted to the doctor, and it is not clear whether this conditional evidence was considered by the Commissioner.\nEven considering the evidence which was allowed in evidence, it was error for the Commissioner to conclude that \u201cthere is absolutely no evidence that his mental condition was affected to such an extent that he was not conscious of his actions or that the proximate cause of his suicide was his injuries.\u201d First, the Petty case explicitly rejected the requirement that the mere \u201cfact that a workman knew that he was inflicting upon himself a mortal wound will, in all cases, amount to a \u2018willful intention\u2019 to kill himself, within the meaning of the statute.\u201d 276 N.C. at 427, 173 S.E. 2d at 328 (quoting from the Supreme Court of Florida.) The focus is not on whether the decedent was conscious of his act but whether because of his injuries he was \u201cdevoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences.\u201d Id. The \u201cissue turns not on the employee\u2019s knowledge that he is killing himself, but rather on the existence of an unbroken chain of causation from the injury to the suicide.\u201d 1A Larson\u2019s, Workmen\u2019s Compensation Law \u00a7 36.30 at 6-136. As further explained by Professor Larson:\n\u201cIn one of the pioneering American statements of this position, Judge Fowler, dissenting in the Barbour case, argued along lines, which have always been considered sound proximate cause doctrine, that if the first cause produces the second cause, that second cause is not an independent, intervening cause. The question whether the actor appreciated the consequences of his act should not be decisive on the fundamental question whether that act was a natural and foreseeable result of the first injury. To say that it was not such a result, one must take the position that it is unforeseeable that a man, in unbearable pain, will knowingly take his own life. That position is simply untenable, and if any evidence is needed, the number of compensation cases presenting these facts should be proof enough.\u201d\nLarson, supra, \u00a7 36.30 at 6-136, -137. Much of this same language was quoted in Petty, supra, 276 N.C. at 426, 173 S.E. 2d at 328.\nSecond, it is one thing for the Commissioner to reject evidence as being incredible, but it is another to say the evidence does not exist at all. See, e.g., Petty, supra, 276 N.C. at 429, 173 S.E. 2d at 330, where Justice Sharp noted that the absolute nature of the Commissioner\u2019s finding in that case ignored certain conflicting statements in the testimony of several witnesses. Similarly, in the instant case we find a considerable amount of properly admissible evidence which would tend to indicate that the decedent took his life because he could not bear to withstand either the pain or the depression and because there was no hope of recovery:\n1. Dr. Brown, the orthopedic medical doctor who treated the decedent, testified that the decedent complained of \u201ccontinuing electric shock-type burning in his left leg;\u201d that he prescribed the strongest medicine for pain other than narcotics which could be prescribed; that he prescribed the maximum dosages for each type of medication decedent was given; that on 6 December 1976, the last time the doctor saw decedent, and almost a year after the injury occurred, the decedent said he was continuing to have the pain; that on 6 December 1976, the doctor observed a depression about decedent\u2019s condition; and, (as conditional evidence) that the severe pain and depression could have contributed to decedent\u2019s death.\n2. Mary Thompson, decedent\u2019s wife, testified that decedent\u2019s \u201cgeneral mental outlook was very bad;\u201d that he could not sleep; that he was despondent; that she had to give him baths and help him go to the bathroom; that such dependency \u201cembarrassed\u201d him, \u201cbothered\u201d him, \u201cworried\u201d him, and kept him hoping that he would improve; that he grew more despondent each month, each week, and each day; that he wanted to know when he would begin to see any hope of getting better; and that on the night of his death he was \u201cin real bad pain.\u201d\n3. Stanley Wilson testified that prior to his accident, decedent was very lively and very active, but that after the accident Wilson detected a change in decedent\u2019s physical and mental condition; that he was more depressed than he had ever seen him before; and that decedent, while in tears, expressed to Wilson that he could hardly stand the pain.\n4. Jerry Barlow testified that prior to the accident the decedent\u2019s general physical health, demeanor, disposition and mental outlook were good; that Barlow noticed a change in decedent\u2019s mental outlook and disposition after the accident; and, (upon objection improperly sustained) that decedent was down in the dumps, depressed, and \u201ccounting to find out,\u201d when decedent asked Dr. Brown if the doctor could take decedent\u2019s leg off to stop the pain and the doctor responded negatively.\n5. Patsy Huffman testified that decedent, prior to the accident, was fun-loving, very sports-minded, loved life, loved his family, loved his job, and was very well adjusted, but that after the accident he talked of the severity of his pain and talked about it all of the time.\n6. A1 Huffman testified that decedent told him, in reference to decedent\u2019s pain: \u201cIt makes me climb the walls. Without medication, I cannot sleep. I can\u2019t function\u201d (motion to strike improperly granted). Huffman also testified that decedent later stated: \u201cI don\u2019t know whether the pain is worth it; I don\u2019t know if I can stand it any longer\u201d (objection properly sustained for leading question).\n7. Walter Estes testified that before the accident decedent was happy-go-lucky and that he loved to live, but that decedent was crying when Estes saw decedent after the accident, and that decedent got more and more depressed as time went on.\n8. A.W. Huffman, Jr., testified that decedent told him \u201cthe pain was so severe that if he had a gun he would just blow his brains out\u201d (objection improperly sustained).\nAs we read Petty, if the Hearing Commissioner were to find the above-stated facts as true, and in the absence of any other evidence as to any other intervening cause, the decedent\u2019s wife would be entitled to recover death benefits under N.C. Gen. Stat. \u00a7 97-38.\nNotwithstanding the fact that the Hearing Commissioner cited the Petty case, \u201c[i]t is clear that this proceeding has been heard and reviewed under a misapprehension of the applicable principi\u00e9is] of law.\u201d 276 N.C. at 429, 173 S.E. 2d at 330. The opinion and award of the Commission is vacated and the cause is remanded to the Industrial Commission for a rehearing to: (1) determine the admissibility of Dr. Brown\u2019s answer to the hypothetical question propounded by counsel for plaintiff, and, if the answer is admissible, to properly consider such testimony; (2) to consider testimony of lay witnesses concerning decedent\u2019s pain and depression which tend to establish a direct causal relation between the accident and the suicide; and (3) to make appropriate additional findings of fact and awards as may be consistent with this opinion and the facts found upon remand.\nVacated and Remanded.\nJudges Vaughn and Martin (Harry C.) concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Wilson, Palmer & Cannon by Hugh M. Wilson and David T. Flaherty, Jr., for plaintiff appellants.", "DuMont, McLean, Leake & Harrell by Larry Leake for defendant appellees." ], "corrections": "", "head_matter": "MARY THOMPSON, Widow & Guardian Ad Litem of TORI ANN THOMPSON and TRACY THOMPSON, Minor Children; A.W. HUFFMAN, JR., Administrator of the Estate of JOHN H. THOMPSON, DECEASED, Employee, Plaintiffs v. LENOIR TRANSFER COMPANY, Employer; and AETNA INSURANCE COMPANY, Carrier, Defendants\nNo. 7910IC1060\n(Filed 5 August 1980)\n1. Master and Servant \u00a7 64.1; Evidence \u00a7 34.6- workers\u2019 compensation \u2014 death benefits - suicide - pain and depression from work-related injury\nIn an action to recover workers\u2019 compensation benefits for the death of an employee from an overdose of pain medicine prescribed in the treatment of injuries received by the employee in a work-related automobile accident, the hearing commissioner erred in the exclusion of evidence of the physical and mental condition of the deceased employee after the accident since (1) the evidence was relevant to plaintiffs\u2019 theory that pain and depression from the work-related injuries caused the deceased to commit suicide and (2) the evidence was admissible under the exception to the hearsay rule for a person\u2019s statement as to then-existing pain and other physical discomfort.\n2. Master and Servant \u00a7 64.1- workers\u2019 compensation - suicide - whether act was willful - pain and depression from work-related injury\nThe Industrial Commission erred in denying workers\u2019 compensation benefits for the death of an employee from suicide by an overdose of pain medicine prescribed in the treatment of injuries received by the employee in a work-related automobile accident on the ground that there was \u201cno evidence that his mental condition was affected to such an extent that he was not conscious of his actions or that the proximate cause of his suicide was his injuries,\u201d since an employee who becomes devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences and commits suicide as a result thereof does not act willfully within the meaning of G.S. 97-12(3). Therefore, where there was competent evidence that deceased took his own life because he could not withstand either the pain or depression and because there was no hope of recovery, the cause is remanded for proper findings and conclusions by the Industrial Commission.\nAppeal by plaintiffs from Order of North Carolina Industrial Commission entered 29 November 1978. Heard in the Court of Appeals 24 April 1980.\nThe appellant is the widow and administratrix of the estate of the deceased-employee, John H. Thompson. The appellant seeks to recover, inter alia, death benefits under the Workers\u2019 Compensation Act, N.C. Gen. Stat. \u00a7 97-38.\nIt is undisputed that on 26 January 1976, the deceased-employee suffered an injury to his left femur, pelvis, and right tibia and fibula as a result of an automobile accident; that at the time of said injury an employment relationship existed between the deceased-employee and defendant-employer, Lenoir Transfer Company; and that defendant Aetna Insurance Company was the compensation carrier on the risk. It is also undisputed that the deceased-employee died on 22 December 1976 as a result of an overdose of pain medicine which had been prescribed by Dr. Paul E. Brown, an orthopedic medical doctor who treated the decedent\u2019s medical injuries.\nThe matter was heard by Commissioner Forrest H. Shu-ford, II, Chief Deputy Commissioner, in Hickory, North Carolina, on 21 June 1978. Additional testimony was received in Lenoir on 16 October 1978. The critical Findings of Fact and Conclusions of Law made by Commissioner Shuford were as follows:\n\u201cFINDINGS OF FACT\n* * * *\n5. Between the time of his accident and the date of his death on 22 December 1976, deceased employee became quite depressed and dejected. Prior to the accident he had appeared to be a well-adjusted, active and fun-loving person. Following the accident he became more and more depressed and dejected as time went by. He suffered with pain in his legs and was given strong pain medication by Dr. Brown and was also prescribed Valium. During the night of 21-22 December 1976 deceased employee took an overdose of drugs and died as a result of multiple toxicity. While the death of deceased employee was contributed to by his accident and the after effects of the accident, the death was a result of his willful intention to kill himself.\n* * * *\nWith respect to the death of deceased employee being a result of the accident, whereas it appears that the deceased employee was depressed and dejected and suffering from pain, there is absolutely no evidence that his mental condition was affected to such an extent that he was not conscious of his actions or that the proximate cause of his suicide was his injuries.\n* * * *\nIt is specifically found as a fact that the death was a result of the willful intention of deceased to kill himself and that the suicide of deceased employee was not a proximate result of his injury by accident.\n* * * *\nIn practically every case severe injuries cause depression and despondency on the part of the-injured or ill employee. It is the opinion of the undersigned that it must be shown that such despondency and depression of the employee was sufficient to cause the suicide in order for the prohibition in G.S. 97-12(3) concerning1 intentional death to be overcome.\n* * * *\nCONCLUSIONS OF LAW\n* * * *\n3. The death of the deceased employee was a result of the willful intention of the deceased employee to kill himself and no death benefits are thus payable. G.S. 97-12.\u201d\nUpon review by the Pull Commission, the Full Commission affirmed and adopted the Opinion and Award filed by Chief Deputy Commissioner Shuford.\nOther necessary facts are stated in the opinion.\nWilson, Palmer & Cannon by Hugh M. Wilson and David T. Flaherty, Jr., for plaintiff appellants.\nDuMont, McLean, Leake & Harrell by Larry Leake for defendant appellees." }, "file_name": "0047-01", "first_page_order": 75, "last_page_order": 84 }