Blassingame v. Southern Asbestos Co.

• Decision Date: 06 March 1940
• Docket Number: 525.
• Parties: BLASSINGAME et al. v. SOUTHERN ASBESTOS CO. et al.
• Court: North Carolina Supreme Court

7 S.E.2d 478

217 N.C. 223

BLASSINGAME et al. v. SOUTHERN ASBESTOS CO. et al.

No. 525.

Supreme Court of North Carolina

March 6, 1940

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

James L. DeLaney, of Charlotte, for plaintiffs.

W. C. Ginter and J. F. Flowers, both of Charlotte, for defendants.

CLARKSON Justice.

We do not think that the exception and assignment of error made by defendants to the judgment as signed by the Court below can be sustained. Asbestosis cases have been before this Court heretofore. McNeeley v. Carolina Asbestos Co., 1934, 206 N.C. 568, 174 S.E. 509; Swink v. Carolina Asbestos Co., 210 N.C. 303, 186 S.E. 258. These cases were prior to the Amendment of 1935.

The General Assembly of North Carolina, at its Regular Session of 1935, passed a comprehensive Act (Chapter 123) in reference to occupational diseases, amending the Workmen's Compensation Act, Public Laws, 1929, Chapter 120, "And To Provide For Securing The Payment Of Compensation In Certain Cases Of Occupational Disease." The pertinent parts--Chapter 123-- "*** Section 50 1/2. (a) The disablement or death of an employee resulting from an occupational disease described in paragraph (b) of this section shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workmen's Compensation Act and the procedure and 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: Provided, however, no compensation shall be payable for asbestosis and/or silicosis as hereinafter defined if the employee, at the time of entering into the employment of the employer by whom compensation would otherwise be payable, falsely represented himself in writing as not having previously been disabled or laid off because of asbestosis or silicosis.

"(b) The following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Act: ***

"24. Asbestosis.

"25. Silicosis. ***

"(c) The term 'disablement' as used in this section as applied to cases of asbestosis and silicosis means the event of becoming actually incapacitated, because of such occupational disease, from performing normal labor in the last occupation in which remuneratively employed," etc. The Act provided money through the Industrial Commission for medical and engineering studies, examinations, etc. The United States Public Health Service supplemented these funds through the North Carolina State Board of Health. As a result the Division of Industrial Hygiene was established in North Carolina.

The Act also provides for "Advisory Medical Committee": "(m) Except as herein otherwise provided, in case of disablement or death from silicosis and/or asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workmen's Compensation Act. ***

"(o) Unless written notice of the first distinct manifestation of an occupational disease shall be given to the employer in whose employment the employee was last injuriously exposed to the hazards of such disease or to the Industrial Commission within thirty (30) days after such manifestation, and, in case of death, unless also written notice of such death shall be given by the beneficiary hereunder to the employer or the Industrial Commission within ninety (90) days after occurrence, and unless claim for disability and/or death shall be made within one (1) year after the disablement or death, respectively, all rights to compensation for disability or death from an occupational disease shall be forever barred," etc.

The Commission set forth "The deceased had been employed in the asbestos industry in North Carolina almost continuously since 1925. For some time before his death and during his last illness he had all the characteristic symptoms of a true asbestosis, but no doctor had so diagnosed it and told him; therefore, the deceased did not have a 'distinct manifestation' as provided for in Section 50 1/2. (o). The Commission has held in several cases against the Standard Mineral Company that the 'first distinct manifestation' is when the employee is told by competent medical doctors that he has asbestosis or silicosis. No claim for compensation could be filed until there was a diagnosis of asbestosis. The first diagnosis of asbestosis was the autopsy report."

The Commission found: "That Dr. Easom's X-ray diagnosis, based upon two examinations, January 27, 1936, and March 23, 1937, was first degree ground glass appearance and asbestosis of both lower lung fields."

The Commission found: "That the widow first knew that her husband, W. S. Blassingame, had asbestosis some time after the autopsy report was filed, May 10, 1937; that notice and claim for compensation were made out July 19, 1937, and filed both with the defendant employer and the Industrial Commission July 20, 1937, or within 90 days as required in Section 50 1/2 (o)." The Occupational Disease Act, including "Asbestosis" was passed in 1935-- Chapter 123. It was an Act to amend the Workmen's Compensation Act (Chapter 120, Laws 1929). This Act says that "All laws and clauses of laws in conflict herewith are hereby repealed." Section 2. Therefore, the Occupational Disease Act must be construed in pari materia.

In Williamson Real Estate Co. v. Sasser, 179 N.C. 497, 499, 103 S.E. 73, 74, it is said: "Amendments are to be construed, together with the original act to which they relate, as constituting one law. The old law should be considered, the evils arising under it, and the remedy provided by the amendments adopted, which shall best repress the evils and advance the remedy. 36 Cyc. 1164, and cases cited." State v. Kelly, 186 N.C. 365, 372, 119 S.E. 755.

The following provisions were then in existence, in which there is no conflict:

Section 8081(dd), in part: "Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employee a written notice of the accident *** unless it can be shown that the employer, his agent or representative, had knowledge of the accident, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, or the fraud or deceit of some third person; but no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice, and the Commission is satisfied that the employer has not been prejudiced thereby."

Section 8081(ff):

"(a) The right to compensation under this article shall be forever barred unless a claim be filed with the industrial commission within one year after the accident, and if death results from the accident, unless a claim be filed with the commission within one year thereafter." This section, like the Amendment of 1935, says, similar to the old Act, "shall be forever barred."

The claim was filed within two weeks after date of letter of Dr. Easom transmitting his report, and the autopsy report of the United States Public Health Service to Dr. Stewart of Lithonia, Ga. The Commission has found that the widow first knew that her husband had asbestosis sometime after May 10, 1937, which was the date of the autopsy report of the United States Public Health Service; that notice and claim was made July 19, 1937, and filed July 20, 1937. Thus it will be seen that it was humanly impossible for the widow to have given notice of such death (death resulting from asbestosis) within ninety days after the death. To construe this section as contended by the defendants would be to deny the benefits conferred by the Act in this and all similar cases. The context of the Compensation Act does not favor such a strained or technical construction. The cause of deceased's death could only be ascertained by autopsy, as above set forth, and notice was given within ninety days after discovery and action brought within one year.

In Johnson v. Hosiery Co., 199 N.C. 38, 40, 153 S.E. 591, 593, this Court said: "It is generally held by the courts that the various compensation acts of the union should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation." We see nothing prejudicial to defendants.

In II Schneider, Workmen's Compensation Law (2d Ed.) part Sec 554, at pp. 2002, 2003, we find: "'The courts may not interfere with the findings of fact, made by the Industrial Commissioner, when these are supported by evidence, even though it may be thought there be error.' 'The rule *** is well settled to the effect that, if in any reasonable view of the evidence it will support, either directly or indirectly, or by fair inference, the findings made by the commission, then they must be regarded as conclusive.' (citing a wealth of authorities). Courts cannot demand the same precision in the finding of commission as otherwise might be if the members were required to be learned in the law." In IV Schneider, Workmen's Compensation Law (suppleme...