Pitman v. L. M. Carpenter & Associates

• Decision Date: 30 October 1957
• Docket Number: No. 314,314
• Citation: 247 N.C. 63,100 S.E.2d 231
• Court: North Carolina Supreme Court
• Parties: Orby PITMAN, Employee, v. L. M. CARPENTER & ASSOCIATES (Employer), and phoenix Assurance Company (Carrier).

Page 231

100 S.E.2d 231

247 N.C. 63

Orby PITMAN, Employee, v. L. M. CARPENTER & ASSOCIATES (Employer), and phoenix Assurance Company (Carrier).

No. 314

Supreme court of North Carolina.

Oct. 30, 1957

Fouts & Watson, Burnsville, for defendant appellants.

Warren H. Pritchard, Spruce Pine, for plaintiff appellee.

RODMAN, Justice.

To support an award to one suffering from silicosis the Commission must find, inter alia: (1) the employee has been exposed to the hazards of silicosis for a minimum of thirty working days during the last seven consecutive months of his employment, G.S. § 97-57, Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274; and (2) plaintiff's work in this State must have exposed him to the inhalation of silica dust for a minimum of two years, no part of which two-year period shall be more than ten years prior to his last exposure, G.S. § 97-63; Hicks v. North Carolina Granite Corp., 245 N.C. 233, 95 S.E.2d 506; Midkiff v. North Carolina Granite Corp., 235 N.C. 149, 69 S.E.2d 166. The Commission found each of these essential facts. The findings were sustained on the appeal to the Superior Court. This appeal again challenges these findings.

Findings of fact by the Industrial Commission are conclusive when supported by any competent evidence. English Mica Co. v. Avery Board of Education, N.C., 100 S.E.2d 72. Hence the question presented is: Does the record contain any evidence to support the findings made by the Commission?

Our examination of the record convinces us that there is plenary evidence to support each of the challenged findings.

Silicosis is caused by the inhalation of silica dust or silicates. G.S. § 97-62. The fact that plaintiff is a victim of silicosis is not challenged. Plaintiff worked for defendant employer form 9 May 1955 to 2 February 1956. his claim was filed 30 April 1956. Dr. C. D. Thomas, a medical expert, testified that mica contains silica, feldspar contains silica. 'Silicosis is caused or augmented by the inhalation of free silica of 10 microns or less. It depends on what you call free silica as to whether or not blocks of mica contain free silica.'

L. L. McMurray, an expert witness for the defendant, testified: 'Silicate is a compound of silica and some other element or elements. Commercial feldspar runs about 65% SiO2, silica. In the colloquial sense flint is entirely free silica. * * * Free silica comes with mica and in this case I would say by accident. It is a contaminent accidentally adhering to the mica. It could stick to the mica. I think trace quantities probably could be found in most cases. It is my opinion that if dust came off the mica, from the material that is surrounding the mica as it was taken out of the ground, that the dust would contain free silica.'

Plaintiff testified that he was employed for two or three weeks as a rifter or sheeter. Blocks of mica are split with a knife into small sheets by a rifter or sheeter. During the remainder of his employment he acted as a foreman or supervisor whose duties were to go around among the other employees and see that they were properly splitting and trimming the mica for shipment. He worked in a modern three-story building about 60 by 100 feet. The first floor, where he worked, was twelve feet high. He testified: 'The scraps would be brought down in the bags in the elevator and were brought down about every other day. When the scraps would come down on the elevator we had to throw them off on the little trucks and roll them out on the truck and it would just be so thick you could see it all over the house. That was mica dust. * * * You couldn't possibly help breathing that dust from the mica when you were in the building. I was in the building all the time and breathed that mica dust every day. The mica was dirty. There was a dirt dust and the mica would have a drill dust. There was flint dust with it. I was referring to the flint dust as drill dust. * * * that flint dust would be in the air most every day I was in there and I would breathe it.'

Lewis Edge, a witness for plaintiff, testified: 'If the mica was pretty dry there was lots of dust when they were unloading it. I'd say the dust was composed of dirt, rock and mica. It would circulate in the air up to where I was working and I would breathe it. * * * When he was there where I was working the mica dust did circulate in that area and I would breathe it. * * * Two or three times a week sweeping would be started before we quit work. Both Mr. Pitman and I would be there when this was being done. They were sweeping the dust off the floors which must have come from the mica. * * * I know several times when I got home I spit the dust up which I breathed. The sweeping caused it to circulate in the air over the building. * * * All of these operations would cause mica dust to circulate in the air in that room, which was breathed by people in the room.'

Dr. Thomas, an expert witness, in response to a hypothetical question propounded to him, expressed the opinion that under the conditions described by the witnesses for plaintiff, plaintiff was subjected to an injurious exposure to silicosis.

The evidence referred to is merely indicative of the evidence offered by plaintiff with respect to the exposure while in the employment of defendants. True, defendants' witnesses expressed the opinion that there was no injurious exposure. This conflict in the testimony merely imposed on the Commission the duty of determining the disputed fact.

Was plainti...