Stewart v. Duncan, 239 N.C. 640 (1954)

March 17, 1954 · Supreme Court of North Carolina

239 N.C. 640

GRANT STEWART, Employee, v. R. H. DUNCAN (Employer), and AMERICAN CASUALTY COMPANY and/or COAL OPERATORS CASUALTY COMPANY (Carriers).

(Filed 17 March, 1954.)

1. Appeal and Error § 6c (2)—

An exception to the judgment without any exception to particular findings of fact presents the sole question of whether the findings are sufficient in law to support the judgment, and does not bring up for review the evidence upon which the findings are based.

2. Master and Servant § 55d—

While it is a better practice ordinarily for the Superior Court to rule separately upon each specific exception to the findings of fact and conclusions of law of the Industrial Commission, when the Superior Court affirms all such findings of fact and conclusions of law and the award, it amounts to a ruling on each and all such exceptions, and appellant on further appeal to the Supreme Court may file specific exceptions to each ruling on which he wishes to base an assignment of error.

3. Master and Servant §§ 40f, 53e — Employer and carrier during last 30-day period employee is exposed to- silicosis are liable.

Where the evidence supports the findings of the Industrial Commission that the employee suffering disability from silicosis was exposed to the hazards of the disease for more than two years in the ten years preceding his disability and .that he was last injuriously exposed to the hazards of the disease for thirty working days within seven consecutive calendar months while in the employment of defendant, G.S. 97-57 places liability .therefor upon such employer and his insurance carrier during that .period, and the mere fact that the employee was advised that he had silicosis prior (to the expiration of this 30-day period but continued for a short time to perform his same work is insufficient alone to sustain the insurance carrier’s contention that his employment after the discovery of the disease was in bad faith to make the loss fall upon it.

4. Master and Servant § 53b—

Where the Industrial Commission finds that a disabled employee was suffering from tuberculosis as weli as from silicosis, whether the award for disability from silicosis should be reduced one-sixth rests in the discretion of the Industrial Commission. G.S. 97-65.

Appeal by defendant, American Casualty Company, from Dan K. Moore, J., September, 1953, Term, of Mitchell.

Proceeding under Workmen’s Compensation Act (G.S. Ch. 97, Art. 1), wherein the plaintiff-employee claims compensation on account of disablement caused by the occupational disease of silicosis.

It was stipulated: “1. That the employer-employee relationship existed between the claimant and the defendant, R. H. Duncan. 2. That all parties were subject to and bound by the provisions of the Workmen’s Compensation Act. 3. That the defendant, American Casualty Company, was tbe insurance carrier for tbe employer from 15 June 1951 to 31 De-eember 1951. 4. Tbat tbe average weekly wage of tbe claimant was $30.00.”

Tbe findings of fact made by tbe bearing commissioner, adopted by tbe full Commission and approved by Judge Moore, include tbe following:

“1. Tbat tbe defendant, E. H. Duncan, operated a feldspar mine near Spruce Pine, in Mitcbell County; . . . tbat all drilling, blasting, and other operations carried on therein are dry operations; tbat there is dust in tbe mine; and tbat this dust contains free silica.

“2. Tbat tbe claimant, Grant Stewart, has worked in tbe mining industry and particularly in feldspar mines most of bis adult life; tbat from 1936 to 1946 be worked at various times in feldspar mines ... as blacksmith, mucker, and driller ... in North Carolina . . .

“3. Tbat tbe claimant worked for Duncan from April 1947 until sometime in tbe early part of 1948; tbat be then quit and mined feldspar for himself until 9 April 1951; tbat on 9 April 1951, be returned to work for tbe defendant, E. H. Duncan, and worked until 3 August 1951; and tbat at all times while engaged in feldspar mining, tbe claimant was exposed to tbe inhalation of dust containing free silica.

“4. Tbat tbe claimant was exposed to tbe inhalation of dust containing free silica in employment in North Carolina for more than two years in tbe ten years preceding 3 August 1951.

“5. Tbat after returning to work for tbe defendant Duncan, tbe claimant worked a total of thirty-four working days or parts thereof prior to 15 June 1951.

“6. Tbat tbe claimant worked on tbe following days for tbe defendant Duncan after 15 June 1951 as follows: June 18, 19, 20, 21, 22, 26, 27, 28, 29; July 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 25, 26, 27, 30, 31; August 1, 2 and 3.

“7. Tbat tbe claimant was last injuriously exposed to tbe hazard of inhaling dust containing free silica in employment in tbe period beginning 21 June 1951 and ending 3 August 1951, both dates inclusive; and tbat these thirty working days were within seven consecutive calendar months.

“8. Tbat tbe defendant, American Casualty Company, was tbe insurance carrier for Eobert H. Duncan when tbe claimant was last injuriously exposed to tbe hazards of silicosis.

“9. Tbat tbe claimant now has tbe characteristic fibrotic condition of tbe lungs caused by the inhalation of dust containing free silica known as silicosis due to tbe inhalation of such dust in bis employment.

“10. Tbat tbe claimant has been periodically examined by tbe Division of Industrial Hygiene of tbe North Carolina State Board of Health; tbat be has been issued work cards at intervals; tbat the last work card was issued on 19 December 1946; tbat tbe claimant was given an X-ray examination by tbe Division of Industrial Hygiene on 12 June 1951; that this examination revealed that the claimant has moderately active pulmonary tuberculosis; that no dust pathology was diagnosed at that time; that the claimant presented himself at the Western North Carolina Sanatorium for examination on 21 July 1951; that at that time he was examined by Dr. O. D. Thomas a duly qualified specialist in pathology of the lungs; that Dr. Thomas made a diagnosis of active pulmonary tuberculosis and silicosis in the first stage; that the claimant was first advised by competent medical authority that he had silicosis on 21 July 1951; and that he filed his claim for compensation with the Industrial Commission on 16 August 1951.

“11. That the claimant’s condition had progressed so that the X-ray made 21 July 1951 revealed the presence of silicosis I, while that on 12 June 1951 did not.

“12. That while employed by the defendant, R. H. Duncan, the claimant worked as a mucker, driller, and foreman in a feldspar mine; and was exposed to the inhalation of dust containing free silica.

“13. That the claimant continued to work until 3 August 1951; that he then quit; that he entered Western North Carolina Sanatorium for treatment of his pulmonary tuberculosis on 27 August 1951; and that he had applied for admission on 21 July 1951.

“14. That the claimant is still a patient at the sanatorium . . .

“15. That the claimant is now actually incapacitated because of silicosis from performing normal labor as a mucker, driller, and foreman in a feldspar mine, the last occupation in which he was remuneratively employed; and that this occurred on 3 August 1951.

“16. That the claimant now has active pulmonary tuberculosis which is sufficient alone to prevent him from working; and that his silicosis is sufficient to prevent him from performing normal labor in the last occupation in which remuneratively employed.

“17. That there is no reasonable basis upon which to conclude that the claimant possesses the actual or potential capacity of body and mind to work with substantial regularity during the foreseeable future in any gainful occupation free from the hazards of silicosis.”

The conclusions of law made by the hearing commissioner, adopted by the full Commission and approved by Judge Moore, were to the effect that under G.S. 97-63, 97-62, 97-54, 97-58 (a), 97-57, the plaintiff was entitled to compensation, and that the defendant, R. H. Duncan, and the defendant, American Casualty Company, its insurance carrier during the period of last injurious exposure, i.e., the thirty days during the period beginning 21 June, 1951 and ending 3 August, 1951, were liable for the payment of such compensation.

Thereupon, an award was made by the bearing commissioner, which was adopted by the full Commission and approved by Judge Moore which adjudged that the defendants R. H. Duncan and American Casualty Company pay compensation to the claimant at the rate of $18.00 per week, during four hundred weeks beginning 4 August 1951, not to exceed a total of $8,000.00, and that they pay all costs incurred, and discharged the defendant, Coal Operators Casualty Company, as a party defendant upon the ground that it had no liability for the payment of the plaintiff's claim.

The judgment of Judge Moore found that there was competent evidence to support the findings of fact of the full Commission and affirmed the award.

“To the rendition and signing of the foregoing judgment the defendant American Casualty Company, in apt time, objects and excepts and gives notice of appeal to the Supreme Court of North Carolina.”

Here, the appellant assigns as error the rendering and signing of the judgment and also that Judge Moore affirmed the findings of fact and conclusions of law of the full Commission in blanket form without ruling specifically upon each of its exceptions to the action of the full Commission.

Fouis ■& Watson for plaintiff, appellee.

Williams & Williams for defendant, appellant.

Proctor •& Dameron for defendant, appellee.

Bobbitt, J.

In appealing from the hearing commissioner to the full Commission, and in appealing from the full Commission to the Superior Court,-the appellant filed specific exceptions to a number of the findings of fact and conclusions of law and to the award. However, the appeal here is from the judgment of Judge Moore, no exceptions having been entered to his rulings as to particular findings of fact. In the absence of such exceptions, the appeal does not bring up for review the evidence upon which the findings of fact are based. The only question presented is whether the findings of fact are sufficient in law to support the judgment. Worsley v. Rendering Co., ante, 547; Wyatt v. Sharp, post, 655; Glace v. Throwing Co., post, 668.

It has been pointed out that we regard it to be the better practice for the Superior Court Judge to rule seriatim on each of the specific exceptions of the appellant to the findings of fact, conclusions of law and award of the full Commission. However, when the Superior Court Judge affirms all such findings of fact and conclusions of law and the award, it is in effect a ruling on each and all such exceptions; and in such case the appellant is in no way precluded from filing specific.exceptions to each ruling on which he wishes to base an assignment of error upon appeal to this court. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E. 2d 869. The procedure is fully explained by Chief Justice Barnhill in Worsley v. Rendering Co., supra.

Tbe appellant, by brief and in oral argument, contends tbat be bad no opportunity to file specific exceptions to the rulings of Judge Moore. There is nothing in the-record before us tbat suggests tbat the appellant was precluded from doing so. A consideration of this contention would take us beyond the record and beyond the assignments of error. However, upon a careful review of the evidence we find tbat all of the findings of fact are amply supported by competent evidence and the appellant has suffered no barm on account of failure to comply with procedural requirements.

G-.S. 97-57 provides: “In any. case where compensation is payable for an occupational disease, tbe employer in whose employment tbe employee was last injuriously exposed to tbe hazards of such disease, and tbe insurance carrier, if any, which was on tbe risk when tbe employee was so last exposed under such .employer, shall be liable.

“For tbe purpose.of this section when an employee has been exposed to tbe hazards of asbestosis or silicosis for as much as thirty working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurioiis but any less exposure shall not be deemed injurious.”

Any suggestion of comparative responsibility as between successive employers and their respective carriers, or as between successive carriers for the same employer,-is dispelled by the plain language of the statute. Tbe liability is upon the employer and carrier on the risk when the employee was “last injuriously exposed” to the hazards of silicosis as tbat expression is clearly defined in G.S. 97-57. Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E. 2d 275; Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E. 2d 274. Under the findings of fact, this casts the liability upon the defendant R. H. Duncan, and upon the defendant American Casualty Company, its carrier.

The principal grievance of the appellant is that it was assigned this risk on 15 June, 1951; that the liability of Coal Operators Casualty Company terminated on that date; and that, while it is liable under the express terms of G.S. 97-57, it is unfair to impose this liability upon it because the plaintiff was permitted to work after 21 July, 1951, when be was advised that be bad silicosis. Tbe contention is that the employment of the plaintiff by Duncan after 21 July, 1951, was in bad faith, in effect a scheme to make the loss fall upon appellant. Again, consideration of this contention would take u^beyond the record and beyond the assignments of error. Suffice it t.o-.say, there was no finding of fact and no evidence supporting any contention of bad faith on the part of the employer. The evidence shows clearly that the claimant’s work after 21 July, 1951, was in all respects the same as that be bad performed prior thereto. In this connection, it should be noted that an employee cannot be forced to change his occupation or be removed therefrom even by order of the Industrial Commission except after hearing held after due notice. Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 197.

It is true that the employer or employer and carrier on the risk when the employee “was last injuriously exposed to the hazards of such disease” within the meaning of G.S. 97-57 must bear the liability, even though the disease has been present and has progressed over a long period of time. This situation gave rise to the necessity for assigning risks by the Compensation Eating and Inspection Bureau. (G.S. Oh. 97, Art. 2.) Each company underwriting workmen’s compensation insurance in this State must accept its share of these undesirable assigned risks whenever the Bureau finds that the risk is in good faith entitled to such coverage. A particular risk, standing alone, may seem to impose an unreasonable burden on the carrier to which it is assigned. However, the long range result would seem to be as equitable as under any system that can be devised.

It is noteworthy that the appellant was the insurance carrier for Duncan from 15 June, 1951, to 31 December, 1951. The coverage included all of Duncan’s employees, not the plaintiff alone. It is also quite possible that another employee of Duncan, within a short period after 31 December, 1951, suffered disablement from silicosis under factual conditions such that the new carrier had to bear the liability.

The applicant also contends that, by reason of the finding of fact that the claimant is suffering from tuberculosis as well as from silicosis, the rate of payment specified in the award should be reduced one-sixth under the provisions of G.S. 97-65. The Industrial Commission, after full consideration, declined to make such reduction; and we are of opinion that, under the language of this statute, this was a matter within its discretion.

It appearing that, upon application of the pertinent statutes to the findings of fact, the award in favor of plaintiff and against the defendants E. II. Duncan and American Casualty Company was fully justified, and finding no error of law in the rulings of the trial judge, the judgment of the Superior Court is

Affirmed.