McNeely v. Carolina Asbestos Co.

• Decision Date: 23 May 1934
• Docket Number: 404.
• Parties: McNEELY v. CAROLINA ASBESTOS CO.
• Court: North Carolina Supreme Court

174 S.E. 509

206 N.C. 568

McNEELY v. CAROLINA ASBESTOS CO.

No. 404.

Supreme Court of North Carolina

May 23, 1934

Appeal from Superior Court, Mecklenburg County; Sink, Judge.

Action by Cabell McNeely against the Carolina Asbestos Company. From an adverse judgment, plaintiff appeals.

Affirmed.

This is a common-law action for damages. Plaintiff alleged that he was employed by the defendant as a spinner and worked from December, 1929, until March, 1931. He further alleged that the room in which he worked was improperly ventilated, and that the atmosphere therein was impregnated with fine asbestos dust, and that such dust was permitted to accumulate by reason of the negligent failure of defendant to provide a dust system or suction system, or to take any other precaution for the protection of the health of an employee and that by reason of such negligence the inhalation of such dust impaired and destroyed his health, resulting in pulmonary asbestosis. He further alleged that such injuries were proximately caused by the negligence of defendant to furnish a safe place to work or to warn and instruct as to the hazards of breathing asbestos dust, etc.

The defendant denied the allegation of negligence and asserted that both the plaintiff and the defendant "were operating under the North Carolina Workmen's Compensation Act, and that the rights and remedies conferred by said act * * * are exclusive of all other rights and remedies." The defendant further pleaded contributory negligence, assumption of risk, and the statute of limitations.

The evidence for plaintiff tended to show that he had been working for the defendant for about fifteen months, and that his duties required him to work in a room filled with asbestos dust and which was poorly ventilated. There was further evidence that other asbestos plants had suction or dusting systems to prevent injury to employees. The plaintiff testified that he had worked at one asbestos plant in Charlotte for about eleven years, and that "when he entered the employment of the Carolina Asbestos Company the condition of my health was good. I did not quit work then but worked until I gave out. * * * At the time I quit I was not able to work. * * * I felt like my chest had thirty or forty pounds of weight on it. I did not want to move. * * * I got to coughing so bad in the mornings when I would get up that I would cough anywhere from fifteen to thirty minutes. * * * The first ten months I worked for the Carolina Asbestos Company I never lost a day. The plant ran so many different grades of asbestos during the time I worked there I really don't know the names of the grades. * * * When I threw it in the machine smoke would fly from the dust. * * * A lot of times it got so dusty it would settle on the electric bulbs."

A physician examined as a witness for plaintiff testified that plaintiff was suffering with pulmonary asbestosis.

At the conclusion of the evidence for the plaintiff, the trial judge sustained a motion of nonsuit, and the plaintiff appealed.

CLARKSON J., dissenting.

B. S. Whiting and J. L. DeLaney, both of Charlotte, for appellant.

John M. Robinson and Hunter M. Jones, both of Charlotte, for appellee.

BROGDEN Justice.

(1) Is pulmonary asbestosis produced by the inhalation of asbestos dust by an employee during a period of five or six months an "injury by accident arising out of and in the course of the employment," within the purview of the North Carolina Workmen's Compensation Law?

(2) Can such employee, so injured, maintain a civil action for damages, upon allegation and proof that such injury was produced by the negligence of the employer?

Both parties to the controversy are presumed to have accepted the North Carolina Workmen's Compensation Act and consequently bound by its terms. Moreover, the evidence disclosed that at all times the defendant had in its employ more than five employees, so that the jurisdictional question is not involved. Code 1931, § 8081(k).

Code 1931, § 8081(i), provides that "'injury and personal injury' shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident."

Code 1931, § 8081(r) provides that "the rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this chapter respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employees, his personal representative, parents, dependents or next in kin, as against employer at common law, or otherwise, on account of such injury, loss of service, or death," etc.

The evidence tended to show that the plaintiff entered the employment of the defendant about December, 1930, and stopped work on account of disability in March, 1932, which constitutes a period of approximately fifteen months. The plaintiff testified: "I did not have any trouble of this kind prior to the time I went to work for the Carolina Asbestos Company. The first ten months I worked there I never lost a day." Consequently, the "injury" asserted by the plaintiff began and progressively produced disability within a period of approximately five months. Plaintiff said: "I never paid so much attention to it until the belt came off the machine I was operating one day and I went up on the ladder and tried to put it back, and I almost fainted up on the ladder. I came down off the ladder and sat down a few minutes until I got over it and went and told the boys to have the belt put on for me."

Upon the foregoing facts and pertinent provisions of the Compensation Law, the plaintiff contends that he is suffering from what is generally denominated in compensation cases "an occupational disease," and that such disease is not compensable, and, therefore, his sole remedy consists in a common-law action for damages. The legal basis for the contention is that the Compensation Act applies to "injury by accident arising out of and in the course of the employment," and, as an occupational disease develops slowly and progressively, such cannot be deemed to be an "injury by accident."

The defendant contended that the injury to plaintiff was either compensable, or, if not compensable, he was precluded from bringing a common-law action for damages by virtue of Code 1931, § 8081(r), supra, and therefore in either event was not entitled to recover.

The term "occupational disease" has been variously defined and interpreted in judicial decisions and text-books. Schneider in Workman's Compensation Law, vol. 1 (2d Ed.) p. 644, said: "A disease contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incidental to a particular employment, is an occupational disease, and not within the contemplation of the Workmen's Compensation Law." Elaboration of the definition is found in Gay v. Hocking Coal Co., 184 Iowa, 949, 169 N.W. 360, 363. The court said: "An 'occupational disease' suffered by a servant or employee, if it means anything as distinguished from a disease caused or superinduced by an actionable wrong or injury, is neither more nor less than a disease which is the usual incident or result of the particular employment in which the workman is engaged, as distinguished from one which is caused or brought about by the employer's failure in his duty to furnish him a safe place to work. If the employer fails to provide a reasonably safe place to work, or fails to observe the specific requirements of the statute with respect thereto, and as a result of such...