Mayberry v. Oakboro Granite & Marble Co.
| Decision Date | 14 December 1955 |
| Docket Number | No. 451,451 |
| Citation | 90 S.E.2d 511,243 N.C. 281 |
| Court | North Carolina Supreme Court |
| Parties | Preston Lee MAYBERRY, Employee, v. OAKBORO GRANITE AND MARBLE COMPANY, Employer, and Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, Carrier. |
T. Burt Mauney, Albemarle, for plaintiff, appellee.
Carpenter & Webb, Charlotte, for defendant Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., appellant and appellee.
Morton & Williams, Albemarle, for defendant Oakboro Granite & Marble Co., appellant.
The particular work in which claimant was engaged from 1 February, 1953, through 19 February, 1953, appears to have involved less hazard than other work in which he had engaged at prior times. Even so, we cannot say that there is insufficient competent evidence to support the challenged findings of fact. Therefore, the assignments of error of defendant employer are overruled.
All members of this Court agree that the employer is liable to the claimant for the full amount of the award.
Must the carrier discharge all or any part of the employer's liability therefor? All members of this Court agree that the determination of this question involves the construction to be placed on G.S. § 97-57, which provides:
'Employer liable.--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.
'For the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as thirty working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious.'
From this point, the members of this Court find themselves in a three-way division of opinion.
BARNHILL, C. J., and DENNY and PARKER, JJ., are of opinion that, since the last day of claimant's exposure to the inhalation of the dust of silica or silicates was 19 February, 1953, on which date disablement occurred, the liability of the employer was fixed as of that date; and that, since the carrier was not then on the risk, the award must be paid in full by the employer.
WINBORNE and HIGGINS, JJ., are of opinion that exposure in February, 1953, being less than for thirty working days and less than a...
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Fetner v. Rocky Mount Marble & Granite Works
...which may be construed to support such election. Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E.2d 115; Mayberry v. Oakboro Granite & Marble Co., 243 N.C. 281, 90 S.E.2d 511; Willingham v. Bryan Rock & Sand Co., 240 N.C. 281, 82 S.E.2d 68; Stewart v. Duncan, 239 N.C. 640, 80 S.E.2d 764; By......
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Hartsell v. Thermoid Co., Southern Division, 236
...is not entirely unreasonable and seems equitable and morally right. It is in accord with the result in Mayberry v. Oakboro Granite & Marble Co., 243 N.C. 281, 90 S.E.2d 511, but is not the basis for the decision therein. The Industrial Commission followed the Mayberry case in making its awa......