#### WADE O. LEWTER, Husband, LIBBY JEANNE LEWTER, Daughter, MRS. WADE O. LEWTER, Deceased Employee, Plaintiffs, v. ABERCROMBIE ENTERPRISES, INC., SHELBY MUTUAL CASUALTY COMPANY, Carrier,—Defendants.

(Filed 4 June, 1954.)

1. Appeal and Error § 6c (7)—

On appeal from judgment of the Superior Court affirming or reversing an award of the Industrial Commission, the Supreme Court will review only such exceptive assignments of error as are properly made to rulings of the Superior Court alone.

*2.*Same—

Where the appellants from an award of the Industrial Commission request the Superior Court to rule upon their exceptions duly entered to the proceedings before the Commission, and except to the action of the Superior Court in declining to make rulings on each of such exceptions, and appeal from the judgment affirming the award, *held,,*the action of the Superior Court in refusing to rule on the exceptions is in effect an overruling of each and all of them, and the record presents for review each of the alleged errors of law thus designated.

3. Master and Servant § 55d—

In reviewing an assignment of error to the findings of fact of the Industrial Commission, the courts will review the evidence to determine as a matter of law whether there is competent evidence tending to support the findings, in which event the findings are conclusive.

4. Same—

Where there is an exception to a finding embracing a mixed question of fact and law, the finding of fact is conclusive if supported by evidence, leaving the question of law alone for review.

5. Master and Servant § 40a—

In order to recover for the death of an employee under the Workmen’s Compensation Act, plaintiff must show that death resulted from an injury by accident which arose out of and in the course of deceased’s employment by defendant, and that it did not result from a disease in any form unless such a disease resulted naturally and unavoidably from the accident. G-.S. 97-2 (f) and (j).

6. Master and Servant § 37—

The North Carolina Workmen’s Compensation Act is an industrial injury act, and not an accident and health insurance act, and must be so construed by the courts.

*4007. Master and Servant § 40c—

The term “arising out oí” within the meaning of the Compensation Act imports that the injury must arise out of the work nr service the employee is to perform and be a risk incidental thereto, so that the employment be a contributing cause of the injury.

8. Master and Servant § 40d—

The term “in the course of” as used in the Compensation Act refers to .the time, place and circumstances under which the accident occurs.

9. Master and Servant § 40f—

Ordinarily, heart disease does not result from an injury by accident arising out of or in the course of employment unless it results from an unusual or extraordinary exertion incident to the employment, nor is it an occupational disease compensable under the Workmen’s Compensation Act.

10. Same — Evidence held not to support finding that cerebral hemorrhage resulted from injury incident to employment.

The evidence in this case tended to show that the employee was engaged as a cashier in the ticket booth of a moving picture theatre, that she was overweight and had suffered from high blood pressure for several years prior to her death, that a fire broke out in the ladies’ rest room on the second floor of the theatre, and that the employee warned patrons in the theatre to leave and refunded their money or gave them passes, that she seemed extremely excited, and that about an hour after the employee had been told of the fire and after it had been put out, she collapsed and died the following morning, without regaining consciousness, of a cerebral hemorrhage. There was testimony, also, that her excitement could have aggravated her condition to such an extent as to cause a cerebral hemorrhage. *Held:*The evidence is insufficient to show that the employee’s death resulted from an injury within the meaning of the Compensation Act, and compensation should have been denied.

Appeal by defendants from *Carr, J.,*December Term 1953 of Dubham.

Proceeding under Workmen’s Compensation Act to determine liability of defendants to tbe widower and infant daughter, sole surviving dependents of Mrs. Wade O. Lewter, deceased employee.

The facts essential to a decision of this appeal found by the hearing Commissioner are stated below (division by numerals ours) :

*One,*the deceased employee on 11 December 1951 received an injury by accident arising out of, and in the course of her employment with the defendant employer, as cashier, in the ticket booth at its theater, where she worked regularly.

*Two,*the deceased employee and another employee at the candy bar were the only persons on duty that afternoon; a passer-by in the street notified Mrs. Lewter the theater was on fire — the fire was in the ladies’ rest room on the second floor.

*Three,*Mrs. Lewter went into the theater and notified all the patrons to leave, refunding their money. During this time she was highly nervous *401and excited. There was a lot of smoke about the entrance of the theater where Mrs. Lewter worked; that firemen put out the fire.

*Four,*about one hour after Mrs. Lewter was notified of the fire and before the firemen left, she collapsed. She was carried unconscious to a hospital where she died the next morning.

*Five,*Mrs. Lewter had been treated for high blood pressure some time prior to her death, which was caused by a cerebral hemorrhage.

The hearing Commissioner concluded as a matter of law that the deceased employee received an injury by accident arising out of and in the course of her employment resulting in her death, and the North Carolina Industrial Commission awarded compensation to the widower and minor daughter of Mrs. Lewter. Whereupon the defendants made application to the Industrial Commission for a review of the award and the opinion of the hearing Commissioner.

•The Full Commission being of the opinion that the evidence supports the facts found by the hearing Commissioner, and that such facts support his conclusions and the award, adopted as its own the findings of fact, conclusions of law and award (the award was corrected by six cents a week), and affirmed.

The defendants appealed “for errors of law in the review of award made by the Full Commission” to the Superior Court, and requested the Superior Court to make rulings, based on 31 objections to the proceeding before the Full Commission.

The Superior Court declined “to make a ruling on each of the foregoing 31 requests for a ruling for the reason that the court is of the opinion that there is competent evidence in the record to support the conclusions of law of the Commission and a ruling on each of said requests is unnecessary.” To the action of the Superior Court in declining to make a ruling on each of the requests for a ruling, the defendants excepted.

The Superior Court entered judgment affirming the award of the Industrial Commission.

The defendants excepted to the judgment and appealed assigning error.

*W. J. Brogden, Jr., for Plaintiffs, Appellees.*

*Egbert L. Haywood and Emery B. Denny, Jr., for Defendants, Appellants.*

PaRkbr, J.

On appeal from a Superior Court’s judgment affirming or reversing an award made by the Full Workmen’s Compensation Commission, we review only such exceptive assignments of error as are properly made to the judgment of the Superior Court alone. *Glace v. Throwing Co.,*239 N.C. 668, 80 S.E. 2d 759; *Worsley v. S. & W. Rendering**402*Co.,*239 N.C. 547, 80 S.E. 2d 467; *Rader v. Queen City Coach Co.,*225 N.C. 537, 35 S.E. 2d 609. Our review is limited to a consideration of tbe assignments of error as to matters of law in tbe trial in tbe Superior Court. *Worsley v. S. & W. Rendering Co., supra; Sprinkle v. Reidsville,*235 N.C. 140, 69 S.E. 2d 179; *Wilson v. Charlotte,*206 N.C. 856, 175 S.E. 306.

After tbe Superior Court declined to make a ruling on eacb of tbe 31 objections taken and preserved in tbe proceedings before tbe Full Commission, tbe appellants excepted to tbe action of tbat court in declining to make a ruling on eacb of the 31 objections. Tbe lower court then entered judgment affirming tbe award, and tbe appellants appealed. Tbe appellants excepted to tbe judgment, and this exception is their assignment of error No. 22. Tbe appellants have 21 assignments of error as to tbe refusal of tbe Superior Court to rule upon eacb of their 31 objections to tbe proceedings before tbe Full Commission.

Tbe plaintiffs contend tbat tbe appellants have failed to base their first 21 assignments of error on specific rulings of tbe Superior.Court; tbat, therefore, their only assignment of error is to tbe signing of tbe judgment. This contention is not supported by tbe Record, for tbe appeal from tbe Superior Court points out, and designates in detail and with particularity in tbe first 21 assignments of error tbe particulars in which errors of law are assigned. It seems to be a substantial compliance with our practice, so as to present for review appellants’ first 21 assignments of error. *Fox v. Mills, Inc.,*225 N.C. 580, 35 S.E. 2d 869. In *Worsley v. S. & W. Rendering Co., supra,*it is said in reference to appeals from tbe Industrial Commission to tbe Superior Court tbe Judge of tbat court “should overrule or sustain each and every exception addressed to alleged errors of law thus designated, so tbat tbe party aggrieved by bis rulings may except thereto and present tbe question to this Court for review.” See also *Stewart v. Duncan,*239 N.C. 640, 80 S.E. 2d 764.

We do not consider it necessary to remand this proceeding because tbe Superior Court Judge declined to rule upon tbe 31 requests for rulings for tbe reason tbat be was of tbe opinion that there is competent evidence in tbe Record to support tbe conclusions of law of the Full Commission, and a ruling on each request was unnecessary, which in reality was an overruling of eacb and all of tbe 31 requests.

Tbe defendants’ assignments of error challenge tbe validity of tbe Superior Court on two grounds: (1) Tbat *the*decision of tbe Full Commission is not sustained by its findings of fact; and (2) tbat such findings of fact are not supported by tbe evidence before tbe Commission. *Anderson v. Motor Co.,*233 N.C. 372, 64 S.E. 2d 265.

When tbe assignments of error bring up for review tbe findings of fact of tbe Commission, we review tbe evidence to determine as a matter of *403law whether there is any competent evidence tending to support the findings ; if so, the findings of fact are conclusive on us. *Vause v. Equipment Co.,*233 N.C. 88, 63 S.E. 2d 173; *Riddick v. Cedar Works,*227 N.C. 647, 43 S.E. 2d 850; *Hildebrand v. Furniture Co.,*212 N.C. 100, 193 S.E. 294.

If a finding of fact is a mixed question of fact and law, it is conclusive also on us, if there is sufficient evidence to sustain the facts involved. If a question of law alone, we review. *Perley v. Paving Co.,*228 N.C. 479, 46 S.E. 2d 298; *Beach v. McLean,*219 N.C. 521, 14 S.E. 2d 515; *Thomas v. Gas Co.,*218 N.C. 429, 11 S.E. 2d 297.

To establish their claim plaintiffs must show (1) death resulting from an injury by accident, (2) arising out of and in the course of decedent’s employment by the defendant, and (3) not including a disease in any form, except where it results naturally and unavoidably from the accident. G. S. N. C. 97-2 (f) (j); *Matthews v. Carolina Standard Corp.,*232 N.C. 229, 60 S.E. 2d 93; *Withers v. Black,*230 N.C. 428, 53 S.E. 2d 668; *Taylor v. Wake Forest,*228 N.C. 346, 45 S.E. 2d 387. The legislative intent seems clear that our 'Workmen’s Compensation Act is an industrial injury act, and not an accident and health insurance act. We should not overstep the bounds of legislative intent, and make by judicial legislation our Compensation Act an Accident and Health Insurance Act.

Our Compensation Act uses the words “injury by accident arising out of and in the course of the employment.” G. S. N. C. 97-2 (f). We said in *Bell v. Dewey Brothers, Inc.,*236 N.C. 280, 72 S.E. 2d 680, “ ‘arising out of’ means arising out of the work the employee is to do, or out of the service he is to perform. The risk must be incidental to the employment. *Hunt v. State,*201 N.C. 707, 161 S.E. 203; *Berry v. Furniture Co.,*232 N.C. 303, 60 S.E. 2d 97.”

*Adams, J.,*said in *Hunt v. State, supra,*“ ‘in the course of’ refer to the time, place and circumstances under which the accident occurs, and the words ‘out of’ to its origin and cause;” words quoted many times in our decisions, *e.g. Vause v. Equipment Co., supra.*

Where the death cannot fairly be traced to the employment as a contributing proximate cause, it does not arise out of the employment. *Bryan v. T. A. Loving Co.,*222 N.C. 724, 24 S.E. 2d 751; *Lockey v. Cohen, Goldman & Co.,*213 N.C. 356, 196 S.E. 342; *Walker v. Wilkins, Inc.,*212 N.C. 627, 194 S.E. 89.

For the death of Mrs. Lewter to be compensable, her death must have resulted from an injury by accident arising out of and in the course of her employment. *Berry v. Furniture Co., supra; Gilmore v. Board of Education,*222 N.C. 358, 23 S.E. 2d 292; *McGill v. Lumberton,*215 N.C. 752, 3 S.E. 2d 324.

In *Neely v. Statesville,*212 N.C. 365, 193 S.E. 664, a fireman of the defendant fighting a fire came out of the attic of a burning building to a *404landing at the head of a stairway to seek fresh air. Shortly thereafter he collapsed, and died from a heart attack. The deceased for more than two years had suffered from a chronic cardiac condition. We held there was no evidence of an accident saying “the work in which the deceased was engaged was the usual work incident to his employment.”

Ordinarily a death from heart disease is not an injury by accident arising out of and in the course of the employment, nor an occupational disease, so as to be compensable under our statute. *Duncan v. Charlotte,*234 N.C. 86, 66 S.E. 2d 22; *West v. Dept. of Conservation,*229 N.C. 232, 49 S.E. 2d 398; *Neely v. Statesville, supra.*In the *West case*a game warden died of a coronary occlusion shortly after he had arrested three persons for fishing without a license, and had taken them before a magistrate, where they were fined. The deceased looked rather flushed; he seemed high strung. A doctor testified the exertion or excitement of the trial and the other incidents of the morning could easily have caused the coronary occlusion and resulting death. The Industrial Commission denied recovery, and in affirming the denial we said: “The record is devoid of any evidence tending to show that the deceased died as the result of an injury by accident.”

In *Gabriel v. Newton,*227 N.C. 314, 42 S.E. 2d 96, we affirmed the Industrial Commission’s award in a death from heart disease. The facts were as follows: A policeman in good health arrested a young man drunk, who violently resisted. The jail elevator was out of order, and the deceased and another officer carried the prisoner up three flights of steps. The deceased collapsed with an acute dilation of the heart due to the unusual exertion; this heart injury was chronic and progressive. Some ten months later the deceased suffered a fatal heart attack.

The place of disease in Workmen’s Compensation Laws is a troublesome question, with most of the difficulty stemming from the accident requirement. Apparently, a majority of jurisdictions hold, if the strain of the employee’s usual exertions causes death or collapse from heart weakness, back weakness, hernia and the like, the injury is compensable. Larson Workmen’s Compensation Law, Yol. One, p. 516 et *seq.,*where the eases are cited. See also 58 Am. Jur., p. 756. It seems a very substantial minority of jurisdictions require a showing that the exertion was in some way unusual or extraordinary. Larson, *ibid.,*p. 516 *et seq.,*where the cases are cited; 71 C.J., Workmen’s Compensation Acts, p. 619.

From our cases cited above it is clear that in *heart cases*our decisions require a showing that the exertion was in some way unusual or extraordinary. These cases are in accord with ours: *Pierce v. Phelps Dodge Corp.,*42 Ariz. 436, 26 P. 2d 1017; *Cleary Brothers Const. Co. v. Nobles,*156 Fla. 408, 23 So. 2d 525; *Brooks-Scanlon, Inc. v. Lee*(Fla.), 44 So. 2d 650; *O’Neil v. W. R. Spencer Grocer Co.,*316 Mich. 320, 25 N.W. 2d *405213; *Stanton v. Minneapolis Street Ry. Co.,*195 Minn. 457, 263 N.W. 433; *State ex rel. Hussman-Ligonier Co. v. Hughes,*348 Mo. 319, 153 *S.W.*2d 40; *Hamilton v. Huebner,*146 Neb. 320, 19 N.W. 2d 552; *Rose v. City of Fairmont,*140 Neb. 550, 300 N.W. 574; *Lohndorf v. Peper Bros. Paint Co.,*134 N.J.L. 156, 46 A. 2d 439, affirmed 135 N.J.L. 352, 52 A. 2d 61; *Temple v. Storch Trucking Co.,*2 N. J. Super. 146, 65 A. 2d 70; *Seiken v. Todd Dry Dock, Inc.,*2 N.J. 469, 67 A. 2d 131; *Cope v. Philadelphia Toilet Laundry & Supply Co.*(Pa. Super.), 74 A. 2d 775; *Powell v. Hills Garage,*150 Pa. Super. 17, 27 A. 2d 773; *Good v. Penn. Dept. of P. & S.,*346 Pa. 151, 30 A. 2d 434; *Cooper v. Vinatieri*(S.D.), 43 N.W. 2d 747; *Frank v. Chicago., M. & St. P. Ry. Co.,*49 SJD. 312, 207 N.W. 89; *Gerich v. Bepublic Steel Corp.,*153 Obio St. 463, 92 N.E. 2d 393; *Crispin v. Leedom & Worrall Co.,*341 Pa. St. 325, 19 A. 2d 400; *Manikowski v. Morris Run Coal Min. Co.*(Pa.), 60 A. 2d 344; *Hiber v. City of St. Paul*(Minn.), 16 N.W. 2d 878; *Sokness v. City of Virginia*(Minn.), 42 N.W. 2d 551.

Tbe bearing Commissioner cited in support of bis opinion *Patrick v. J. B. Ham Co.,*119 Me. 510, 111 A. 912, 13 A.L.R. 438, and *Crosby v. Thorp, Hawley Co.,*206 Mich. 250, 172 N.W. 535, 6 A.L.R. 1253. Both cases were decided by divided courts, and Maine apparently follows a different rule from ours. Larson Workmen’s Compensation Law, Vol. One, p. 521.

Plaintiffs’ evidence tended to sbow these facts. Mrs. Lewter consulted a doctor for higb blood pressure on 29 January 1948. Sbe was then overweight, and her blood pressure was 230/110. There bad been a history of high blood pressure in her family. From then on sbe consulted two doctors, and received treatment; sbe bad higb blood pressure several years before her death. On tbe afternoon of 11 December 1951 sbe was engaged in her usual work as cashier in tbe ticket booth of defendant’s theater. A passer-by in tbe street told Mrs. Ferrell tbe theater was on fire, and sbe told Mrs. Lewter. Tbe fire was in tbe ladies’ rest room on tbe second floor, which is separated by a large wall from where tbe people sit. Three employees were present, Mrs. Lewter, Mrs. Ferrell at tbe candy bar, and a man in tbe projector room. A small number of spectators were in tbe theater. Mrs. Lewter went in the theater, walked up and down tbe aisles and up in tbe balcony, told tbe spectators there was a fire, and asked them to leave. Tbe spectators left calmly and without undue baste. Mrs. Lewter went back in tbe box office, and gave tbe spectators refunds or passes. In giving out tbe refunds Mrs. Lewter was excited; sbe got the money mixed up in making tbe refunds.

A policeman testified tbe spectators were out of tbe theater when be arrived. He saw Mrs. Lewter twice run back and forth from tbe office to tbe cashier’s box. He saw some tickets in her bands. In bis opinion *406she was very highly excited. The office is about 15 or 20 feet from the cashier’s box. When this officer left, the firemen were clearing up the hose preparing to leave. Mrs. Lewter had not been stricken then.

The fire was in the ladies’ rest room on the second floor. As' to the building, only the window frame and the window in the rest room were damaged, rugs and draperies in the rest room were damaged. There were no flames in the theater part or the lobby. The smoke was upstairs where the ladies’ rest room was, and in the stairway, banking back into the lobby. The damage was about $6,000.00. The assistant chief of the Durham Fire Department, a witness for plaintiffs, testified, our record has the fire classified by someone smoking, and dropping a cigarette into a stuffed chair, setting off the curtains.

About one hour after Mrs. Lewter was told of the fire, she collapsed unconscious, apparently in the ticket booth. The following morning, without regaining consciousness, she died in a hospital. The cause of her death was cerebral hemorrhage, due to hypertension.

There was medical evidence to the effect that the fire and Mrs. Lewter’s excitement would have aggravated her condition to such an extent as to cause the cerebral hemorrhage from which she died.

In our opinion, there is no evidence tending.to show that Mrs. Lewter died as the result of an injury, as those words are used in our Workmen’s Compensation Act. This is in accord with our decisions in *Neely v. Statesville, supra; Gabriel v. Newton, supra; West v. Dept. of Conservation, supra; Duncan v. Charlotte, supra.*

It is common knowledge that blood vessels in the human system, weakened by disease, often burst, even when the victim is sleeping in bed. The evidence is clear that Mrs. Lewter’s death cannot fairly be traced to her employment as a contributing proximate cause. It seems plain that because of Mrs. Lewter’s high blood pressure for many years, the time appointed for her to die had come, irrespective of the fire; the finger of death touched her, and she sleeps till the Great Day of Judgment.

The judgment of the lower court is

Reversed.