Haynes v. Feldspar Producing Co.

• Decision Date: 21 October 1942
• Docket Number: 233.
• Citation: 22 S.E.2d 275,222 N.C. 163
• Parties: HAYNES v. FELDSPAR PRODUCING CO. et al.
• Court: North Carolina Supreme Court

22 S.E.2d 275

222 N.C. 163

HAYNES v. FELDSPAR PRODUCING CO. et al.

No. 233.

Supreme Court of North Carolina

October 21, 1942

The plaintiff brought this proceeding to recover compensation under the occupational disease sections of the Workmen's Compensation Act, complaining that he was afflicted with silicosis and was last injuriously exposed to the hazards of such disease while employed by the defendant company. From the award made by the Industrial Commission, the defendants appealed; and at the hearing in the Superior Court, the award was affirmed and from this judgment defendants appealed to this Court.

The controversy here concerns the sufficiency of the evidence to support the findings of fact by the Commission that plaintiff was last injuriously exposed to the disease while working in the employment of defendant in its feldspar mine in Mitchell County.

The evidence discloses that the plaintiff had been working in feldspar mines in North Carolina for about twenty-eight years. From 1927 to 1940, he worked for the Tennessee Mineral Corporation at its English Knob Mine, which was an underground and closed mine, in which there was flint and dust.

At this mine the plaintiff did some drilling and worked close to the drillers. The "silica dust" in that mine was pretty bad, and plaintiff was exposed to it constantly. The method of dry drilling was used in the mine.

The plaintiff began working for the Producing Company at its Hoot Owl Mine in Mitchell County September 24, 1940, working there as a mucker. As mucker his duties required him to shovel up feldspar and put it in the cars.

The Hoot Owl Mine was an open mine, using only one drill and using this two days a week. Plaintiff worked in positions from five to thirty feet from where the drill was used on the days it was working. There was dust there during the time the defendant was drilling, and on other days, about 10% of the time the dust would blow down from the banks and earth's surface. The dust came from feldspar and flint in that mine.

On January 24, 1941, plaintiff received a letter from Dr. Vestal informing him that he had silicosis, and plaintiff worked no more after that date. The letter is as follows:

"North Carolina

"State Board of Health

"Raleigh

"January 21, 1941

"Mr James R. Haynes, Sr.,

"Spruce Pine, N. C.

"Dear Mr. Haynes:

"Reference is made to our examination of you at Spruce Pine on November 28th. Your history reveals a cough of seven years duration dry in type and worse at night. Moderate shortness of breath which is not progressive is admitted over a period of three years. Your physical examination reveals little of importance, however, your x-ray reveals rather wide spread disease distributed throughout both lungs which we believe to be due to your previous dust exposure. We believe that this places you in a classification of moderately advanced silicosis with probable infection. The infection may be of a tuberculous nature but this, of course, can only be determined by further study of your case, which should be done at a sanatorium.

"We are, of course, unable to issue to you a work card necessary for employees engaged in a dusty trade.

"Yours very truly,

"Signed T. F. Vestal, M. D.,

"Director Division of

Industrial Hygiene.

"TFV:vh.

"Cc N. C. Industrial Commission.

"Feldspar Producing Company."

Since that time plaintiff has been short-winded, his heart has beat fast, and he has coughed. He has done no work except in his vegetable garden at home.

Plaintiff testified that when he worked for the Tennessee Mineral Corporation, he was short-winded, too, and his heart beat fast, and his chest hurt him sometimes then. He had been coughing and short-winded for seven years, and during that time his heart had been beating fast.

M. F. Trice, Engineer for the Division of Industrial Hygiene, a joint activity of the Industrial Commission and the State Board of Health, specializing in dust counts and occupational environments as they relate to occupational diseases, examined the Hoot Owl Mine of the defendant in the Fall of 1936, and also on the day of his testimony. He testified that there had been no material changes in the mine since his examination in 1936. At that time he took specimens. The first sample represented dry drilling near the open wall of the open cut and the particle count on that sample indicated a dust concentration of 66 1/2 millions per cubic foot of air. Another sample was taken 20 to 25 feet away from the driller and represented mucking. This indicated a dust count of 44.8 million particles per cubic foot of air. Then another sample was taken to represent exposure and dry drilling and on this test, the concentration was 271 million particles per cubic foot of air. Another sample was taken to evaluate the mucking operation 20 feet away from the driller, and the particle counts on that sample of dust indicated a concentration of 30.2 million particle per cubic foot. In the opinion of the witness, the dust concentration in this mine is sufficient to constitute a silicosis hazard.

"When there was drilling going on in the defendant's mine, the dust count would naturally be larger than it would be when there was no drilling going on. If drilling was done there today, for all practical purposes, the dust would be gone by tonight. The counts in 1936 were made while the drilling was being done at this mine, as we always want to get the worst possible condition. The United States Public Health Service found that anything less than 10 million particles of dust per cubic foot of air was all right. However, once you pass that point, whenever a man is exposed to concentrations of dust in excess of that, there is likelihood of some ill-effects. This is based on a constant concentration, year in and year out. Two drills make more dust than one drill. The man drilling is exposed to more dust than the man who is mucking. The closer the man is to the drill, the more apt he is to breathe some of the dust. The defendant's open mine is about 60 feet deep. There would not be much dust count growing out of mucking. When the wind was blowing, I should think that any dust in the mine would be picked up and carried away with the wind."

Dr. T. F. Vestal was examined for the plaintiff. When this witness was presented, it was explained to him that the expression "last injuriously exposed" as used in the statute, N.C.Code (Michie), Sec. 8081(6), meant an exposure which proximately augmented the disease to any extent, however slight. A hypothetical question was addressed to him, based on the evidence before the Commission, and he was asked to give an opinion as to whether or not under the conditions named and the facts presented in the hypothetical question, the exposure to which the employee was subjected from September 24, 1940, to January 24, 1941, while working for the defendant employer, constituted an injurious exposure, or whether or not as a result of the exposure to said hazard, he was injuriously exposed to the hazard of the occupational disease of silicosis. The Doctor replied: "You haven't left me much leeway. I have an opinion that it did constitute an injurious exposure."

The Doctor further testified as follows:

"I examined the plaintiff on October 12, 1936, on November 8 1937, on June 7, 1938, on October 24, 1938, and on November 28, 1940. In 1936, we found his condition negative. On November 8, 1937, we found that he had early silicosis commonly referred to as silicosis one, without symptoms, and healed pulmonary tuberculosis. On October 25, 1938, I examined him and found that he had silicosis one. On November 28, 1940, I examined him and found that he had moderately advanced silicosis with probable infection. I have not seen ...