Glenn v. Columbia Silica Sand Co.

• Decision Date: 09 February 1960
• Docket Number: No. 17613,17613
• Citation: 236 S.C. 13,112 S.E.2d 711
• Court: South Carolina Supreme Court
• Parties: Annie Laura GLENN, Plaintiff, v. COLUMBIA SILICA SAND COMPANY, Employer, and Dixie Fire and Casualty Company, and Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, Defendants, of whom Dixie Fire and Casualty Company is, Appellant, and Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company and Annie Laura Glenn are, Respondents.

Page 711

112 S.E.2d 711

236 S.C. 13

Annie Laura GLENN, Plaintiff, v. COLUMBIA SILICA SAND COMPANY, Employer, and Dixie Fire and Casualty Company, and Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, Defendants of whom Dixie Fire and Casualty Company is, Appellant, and Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company and Annie Laura Glenn are, Respondents.

No. 17613.

Supreme Court of South Carolina.

Feb. 9, 1960.

Whaley & McCutchen, Hoover C. Blanton, Columbia, for appellant.

Boyd, Bruton & Lumpkin, Columbia, for respondents.

LEGGE, Justice.

Colie B. Glenn, an employee of Columbia Silicia Sand Company, died on April 4, 1958, of silicosis. He had been in the employ of that company for about ten years, during the last four of which he worked in the drying room, where the sand is dried by heat and is screened for removal of trash and for granding. On September 30, 1957, he was hospitalized, diagnosis on his admission disclosing fever, asthmatic bronchitis and persistent nosebleed. While in the hospital, X-ray examination of his chest resulted in diagnosis, for the first time, of silicosis. The record before us indicates that although his salary was paid through October 10, 1957, he had been unable to work regularly after August 29, 1957; and it is uncontroverted that from the time of the diagnosis in October, 1957, he was totally disabled.

It is conceded that Mr. Glenn's death resulted from silicosis, an occupational disease peculiar to and contracted during his employment, and that his widow is entitled to compensation under the South Carolina Workmen's Compensation Law. The controversy here is between two insurers, the respondent Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, which covered the employer from May 19, 1950, through May 18, 1957, and the appellant Dixie Fire and Casualty Company, which covered on and after May 19, 1957, as to which of them must pay the award or whether and how its payment should be apportioned between them.

The hearing commissioner, having found that the last injurious exposure was on or about October 1, 1957, concluded as a matter of law that liability should be apportioned on the basis of length of coverage during the year ending on that date, i. e.: that Pennsylvania should pay such proportion, 63.3%, of the award, as the period of its coverage (October 1, 1956, through May 18, 1957, or 7 3/5 months) bore to that full year; and that Dixie should pay 36.7% based on its coverage during the period May 19--October 1, 1957, or 4 2/5 months. Upon review by the full commission, a majority reversed, holding that Dixie should bear the entire loss. From an order of the circuit court affirming this holding, Dixie appeals.

Dr. Pitts, who was Mr. Glenn's personal physician, testified to his treatment of Mr. Glenn, prior to the latter's hospitalization on September 30, 1957, as follows:

November 2, 1954: Mr. Glenn came to him, suffering from asthmatic bronchitis resulting from inhalation of dust. Condition improved under treatment and patient returned to work November 9. No X-ray was taken. Claim for workmen's compensation benefits for this period of disability, October 28--November 9, 1954, was filed and paid.

June 18, 20 and 21, 1955: Treatment for asthma and an ear infection. No claim for compensation.

November 9, 10, 17 and 18, 1955: Recurrence of asthma, with some fever. Administered antibiotics. No claim for compensation.

May 8, 1957: Same symptoms, in mild form. No fever. Penicillin. No claim for compensation.

August 8, 1957: Same symptoms. Some fever. No claim for compensation.

The South Carolina Workmen's Compensation Law is codified as Title 72 of the 1952 Code. Chapter 5 of that Title (Sections 72-251 through 72-269) relates to occupational diseases. Pertinent here are Sections 72-252, 72-253, 72-255 and 72-256, which read as follows:

'72-252. As used in this chapter, 'disablement' means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational discase, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, 'partial disability' means the physical inability to continue work in such occupation only and 'total disability' means the physical inability to perform work in any occupation. The disablement and disability of an employee from an occupational disease shall be determined as provided in this chapter.'

'72-253. When employer and employee are subject to the provisions of this Title, the disablement or death of an employee resulting from an occupational disease shall be treated as an injury by accident and the employee, or in case of death his dependents, shall be entitled to compensation as for an injury under this Title, except as otherwise provided in this chapter; and the practice and procedure prescribed in this Title shall apply to all proceedings under this chapter, except as otherwise provided in this chapter. In no case shall an employer be liable for compensation for an occupational disease unless such disease was contracted by the employee while in the employ of the employer as a direct result of the employment.'

'72-255. No compensation shall be payable for any pulmonary disease arising out of the inhalation of organic or inorganic dusts unless the claimant shall have been exposed thereto by his employment for a period of at least one year and unless he suffers a total disability therefrom.'

'72-256. Neither an employer nor his dependents shall be entitled to compensation for disability or death from an occupational disease unless such disease was contracted within one year after the last exposure to the hazard peculiar to his employment which caused the disease, save that in the case of a pulmonary disease arising out of the inhalation of organic or inorganic dusts the period shall be two years.'

Appellant argues that the award should be either:

1. paid by Pennsylvania alone, as the insurer 'when the disease first manifested itself in 1954'; or

2. apportioned between Pennsylvania and Dixie in proportion to the time that each was on the risk during one of three periods, viz.:

(a) May 19, 1950 (when Pennsylvania's coverage began) to October 1, 1957 (date of diagnosis and total disability); or

(b) October 28, 1954 ('when the disease first manifested itself') to October 1, 1957; or, as held by the hearing commissioner,

(c) October 1, 1956 to October 1, 1957 (last year of exposure).

These contentions in themselves suggest the difficulty of evolving a stable and workable rule for determining liability as between successive insurers in caes of occupational disease, such as silicosis, where disability develops gradually from long exposure to the occupational hazard. In our opinion none of the suggested formulae is soundly applicable here. We shall discuss them briefly, as numbered above.

1. This argument is based upon the assumption that the temporary disability in 1954 (October 28--November 9) from 'asthmatic bronchitis resulting from inhalation of dust' was the 'first manifestation' of silicosis. But it is clear from Dr. Pitts' testimony that he did not consider or diagnose that illness as resulting from silicosis. In other words, inhalation of dust had not at that ime progressed to the point where it could be said with reasonable certainty that the disease of silicosis was present. The inference that appellant would draw from Dr. Pitts' testimony is too speculative.

2. (a) In the suggested prorating from the inception of Pennsylvania's coverage, May 19, 1950, liability would commence with exposure, not disability. But, as we have held in compensation cases other than those arising from occupational diseases, compensability, and therefore liability, is founded upon disability, not injury. Keeter v. Clifton Mfg. Co., 225 S.C. 389, 82 S.E.2d 520. Such too, we think, is the clear intendment of the Code sections before quoted, relating to occupational diseases.

2....