Autrey v. Victor Mica Co., 236
Decision Date | 07 November 1951 |
Docket Number | No. 236,236 |
Citation | 67 S.E.2d 383,234 N.C. 400 |
Parties | AUTREY, v. VICTOR MICA CO. et al. |
Court | North Carolina Supreme Court |
W. C. Berry, Bakersville, Warren H. Pritchard, Spruce Pine, for plaintiff-appellee.
Smathers & Meekins, Asheville, for defendants-appellants.
Defendants, the appellants, state in their brief three questions as involved on this appeal, the first two of which call for express consideration,--decisions on which are determinative of the third.
I. It is insisted that the court below erred (1) in overruling defendants' exception to the finding of fact, No. 6, by the Industrial Commission that plaintiff was first advised by competent medical authority that he had silicosis on or about 24 March, 1948, when Dr. Thomas wrote a letter to that effect, and (2) in overruling defendants' motion that the cause be remanded to the Industrial Commission for a specific finding whether plaintiff was advised by competent medical authority in 1940 that he was under disablement from silicosis.
It is urged that this finding involves mixed questions of law and fact, which are not supported by the evidence, and that hence the award based thereon cannot be upheld. It is pertinent here to note that the statute G.S. § 97-58(b) provides that 'The time of notice of an occupational disease shall run from the date that the employee has been advised by competent medical authority that he has same'.
In this connection it is contended that the record shows without contradiction that plaintiff was advised by Dr. Bittinger, in 1940, that he was under disablement from silicosis, and that, from the exhibits in the case and the medical reports, Dr. Bittinger was in the employment of the State of North Carolina, as Medical Director of the Western North Carolina Sanatorium for tuberculosis at Black Mountain, and, hence, it is assumed that the court will take judicial notice of the public record of the State showing the appointment and employment of Dr. Bittinger in such capacity.
However, granting that Dr. Bittinger be a 'competent medical authority' within the purview of the statute, G.S. § 97-58(b), as contended by defendants, the finding of fact No. 6 is tantamount to a finding that Dr. Bittinger had not advised plaintiff that he had silicosis. And the evidence shown in the record, when taken in light most favorable to claimant, is sufficient to support the finding as made.
True, it is made to appear from the Sanatorium records that Dr. Bittinger wrote two letters (1) 18 June, 1940, referring to examination of 13 June, 1940, in which he said: 'I believe that Mr. Autrey has now definite evidence of pneumoconiosis of the silicotic type, though I do not believe that it is very extensive as yet'; and (2) 30 October, 1940, to Dr. McDuffie, in which he said: 'We also believe that he has some silicosis with quite a good deal of chronic bronchitis and slight amount of pneumonosis'. Neither of these letters appears to be addressed to plaintiff.
On the other hand, plaintiff, testifying on direct examination, stated that when Dr....
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Singleton v. D. T. Vance Mica Co.
...his examination reveals 'evidence of dust disease,' is not sufficient to put him on notice that he has silicosis. Autrey v. Victor Mica Co., 234 N.C. 400, 67 S.E.2d 383. Moreover, the information given in the above letter did not reveal the seriousness of the condition of Sam Singleton at t......
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Taylor v. J. P. Stevens and Co.
...first advised he had the disease, even if the disablement existed from the time the employee quit work. Thus in Autrey v. Victor Mica Company, 234 N.C. 400, 67 S.E.2d 383 (1951), claimant ceased work in 1945, three years prior to his claim. At that time he was told he had asthma and dust al......
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...last exposure to asbestos dust. However, the results reached by the Commission will not be disturbed by us. In Autrey v. Mica Co., 234 N.C. 400, 408, 67 S.E.2d 383, 389 (1951), our Supreme Court stated: "It is pertinent here to note that the statute G.S. 97-58(b) provides that 'The time of ......