Stewart v. Duncan
| Decision Date | 17 March 1954 |
| Docket Number | No. 233,233 |
| Court | North Carolina Supreme Court |
| Parties | STEWART, v. DUNCAN et al. |
Fouts & Watson, Burnsville, for plaintiff, appellee.
Williams & Williams, Asheville, for defendant, appellant.
Proctor & Dameron, Marion, for defendant, appellee.
In appearling from the hearing commissioner to the full Commission, and in appealing from the full Commission to the Superior Court, the appellant filed specific exceptions to a number of the findings of fact and conclusions of law and to the award. However, the appeal here is from the judgment of Judge Moore, no exceptions having been entered to his rulings as to particular findings of fact. In the absence of such exceptions, the appeal does not bring up for review the evidence upon which the findings of fact are based. The only question presented is whether the findings of fact are sufficient in law to support the judgment. Worsley v. S. & W. Rendering Co., N.C., 80 S.E.2d 467; Wyatt v. Sharp, N.C., 80 S.E.2d 762; Glace v. Throwing Co., N.C., 80 S.E.2d 759.
It has been pointed out that we regard it to be the better practice for the Superior Court Judge to rule seriatim on each of the specific exceptions of the appellant to the findings of fact, conclusions of law and award of the full Commission. However, when the Superior Court Judge affirms all such findings of fact and conclusions of law and the award, it is in effect a ruling on each and all such exceptions; and in such case the appellant is in no way precluded from filing specific exceptions to each ruling on which he wishes to base an assignment of error upon appeal to this court. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869. The procedure is fully explained by Chief Justice Barnhill in Worsley v. Rendering Co., supra.
The appellant, by brief and in oral argument, contends that he had no opportunity to file specific exceptions to the rulings of Judge Moore. There is nothing in the record before us that suggests that the appellant was precluded from doing so. A consideration of this contention would take us beyond the record and beyond the assignments of error. However, upon a careful review of the evidence we find that all of the findings of fact are amply supported by competent evidence and the appellant has suffered no harm on account of failure to comply with procedural requirements.
G.S. § 97-57 provides:
'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.'
Any suggestion of comparative responsibility as between successive employers and their respective carriers, or as between successive carriers for the same employer, is dispelled by the plain language of the statute. The liability is upon the employer and carrier on the risk when the employee was 'last injuriously exposed' to the hazards of silicosis as that expression is clearly defined in G.S. § 97-57. Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275; Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274. Under the findings of fact, this casts the liability upon the defendant R. H. Duncan, and upon the defendant American Casualty Company, its carrier.
The principal grievance of the appellant is that it was assigned this risk on 15 June, 1951; that...
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