Bye v. Interstate Granite Co.

• Decision Date: 04 May 1949
• Docket Number: 522
• Citation: 53 S.E.2d 274,230 N.C. 334
• Parties: BYE v. INTERSTATE GRANITE CO. et al.
• Court: North Carolina Supreme Court

53 S.E.2d 274

230 N.C. 334

BYE v. INTERSTATE GRANITE CO. et al.

No. 522

Supreme Court of North Carolina

May 4, 1949

Smathers, Smathers & Carpenter and James L DeLaney, all of Charlotte, for Pacific Employers Ins. Co.defendant, appellant.

Pierce & Blakeney, of Charlotte, for Bituminous Casualty Corporation, defendant, appellee.

David J. Craig, Jr., of Charlotte, for plaintiff, appellee.

SEAWELL Justice.

The appeal under consideration is by the Pacific Employers Insurance Company, carrier of insurance for the Interstate Granite Company.The controversy is between the Bituminous Casualty Company, appellant, sometime carrier for the Granite Company during the employment of the plaintiff's intestate, now appellee, and the Pacific Company, appellant carrier when the employee quit work.The employer, the Granite Company, did not appeal; and since the sole question involved is which of the carriers is liable under the risk, and subject to payment of the award, which is not assailed, the plaintiff administratrix is not concerned with the result.

The subject award was made under a claim filed by Bye before the Industrial CommissionMarch 3, 1947, for compensation for total and permanent disability caused by silicosis contracted in the course of employment as a granite stone cutter through the inhalation of silica dust.A hearing was had before Commissioner Buren Jurney, upon which hearing findings of fact were made and award adverse to the Pacific Company, and appeal was made by it to the full commission.There the award was again adverse, exonerating the Bituminous Company and fixing liability on the appellant.From this award the Pacific Company appealed to the Superior Court of Mecklenburg County, where the award of the Commission was affirmed; and the Pacific Company appealed to this Court.

Pertinent to this appeal, the Workmen's Compensation Act, G.S. s 97-57 provides:

'In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.'

Silicosis is a progressive and often fatal condition similar to asbestosis which latter was formerly recognized as compensable under the more general provisions of the statute as an accident arising out of, and in the course of employment.McNeely v. Carolina Asbestos Co.,206 N.C. 568, 174 S.E. 509.By amendment to the law, silicosis, along with other occupational diseases named, was made compensable in the same manner as an injury by accident arising out of and in the course of employment.

Obvious difficulties in fixing liability for compensation during successive periods, or stages, of employment, no doubt, led to the present law which predicates the liability on the last exposure, providing it is as much as 30 days, and makes no provision for sharing liability with former employers, or carriers on previous risk, or prorating the award.The sole liability is upon the carrier which was 'on the risk'--that is, insurer, for the period of last exposure, as defined and limited in the act.Haynes v. Feldspar Producing Co.,222 N.C. 163, 22 S.E.2d 275;G.S. s 97-57, supra.

This much we do not understand appellant to dispute.It does however, ask serious consideration of the contention that prior to the filing of the present claim, and before it became carrier, and while Bituminous was still 'on the risk,' all the facts and conditions entitling the employee to compensation for total...