Blassingame v. Southern Asbestos Co. , 217 N.C. 223 ( 1940 )

Clarkson, J.

We do not think that the exception and assignment of error made by defendants to the judgment, as signed by the court below, can be sustained. Asbestosis cases have been before this Court heretofore. McNeeley v. Asbestos Co., 206 N. C., 568 (1934); Swink v. Asbestos Co., 210 N. C., 303. These cases were prior to the amendment of 1935.

Tbe General Assembly of North Carolina, at its regular session of 1935, passed a comprehensive act (chapter 123) in reference to occupational diseases, amending the "Workmen’s Compensation Act, Public Laws 1929, chapter 120, “And to provide for securing the payment of compensation in certain cases of occupational disease.” The pertinent parts — chapter 123. . . . Sec. 50½. (a) The disablement or death of an employee resulting from an occupational disease described in paragraph (b) of this section shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workmen’s Compensation Act and the procedure and practice and compensation and other benefits provided by said act shall apply in all such cases except as hereinafter otherwise provided. The word ‘accident,’ as used in the Workmen’s Compensation Act, shall not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously or at frequent intervals in the course of such employment, over extended periods of time, whether such events may or may not be attributable to fault of the employer, and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this act: Provided, however, no compensation shall be payable for asbestosis and/or silicosis as hereinafter defined if the employee, at the time of entering into the employment of the employer by whom compensation would otherwise be payable, falsely represented himself in writing as not having previously been disabled or laid off because of asbestosis or silicosis, (b) The following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this act: . . . (24) Asbestosis. (25) Silicosis. . . . (c) The term ‘disablement’ as used in this section as applied to cases of asbestosis and silicosis means the event of becoming actually incapacitated, because of such occupational diseases, from performing normal labor in the last occupation in which remuneratively employed,’ ” etc. The act provided money through the Industrial Commission for medical and engineering studies, examinations, etc. The United States Public Health Service supplemented these funds through the North Carolina State Board of Health. As a result the Division of Industrial Hygiene was established in North Carolina.

The act also provides for “Advisory Medical Committee”: “‘(m) Except as herein otherwise provided, in case of disablement or death from silicosis and/or asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workmen’s Compensation Act.’ . . . ‘(o) Unless written notice of the first distinct manifestation of an occupational disease shall be given to the employer in whose employment the employee was last injuriously exposed to the hazards of such disease or to the Industrial Commission within thirty (30) days after such manifestation, and, in case of death, unless also written notice of such death shall be given by the beneficiary hereunder to the employer of the Industrial Commission within ninety (90) days after occurrence, and unless claim for disability and/or death shall be made within one (1) year after the disablement or death, respectively, all rights to compensation for disability or death from an occupational disease shall be forever barred/ ” etc.

The Commission set forth “The deceased had been employed in the asbestos industry in North Carolina almost continuously since 1925. For some time before his death and during his last illness he had all the characteristic symptoms of a true asbestosis, but no doctor had so diagnosed it and told him; therefore, the deceased did not have a ‘distinct manifestation’ as provided for in section 50% (°)- The Commission has held in several cases against the Standard Mineral Company that the ‘first distinct manifestation’ is when the employee is told by competent medical doctors that he has asbestosis or silicosis. No claim for compensation could be filed until there was a diagnosis of asbestosis. The first diagnosis of asbestosis was the autopsy report.”

The Commission found: “That Dr. Easom’s X-ray diagnosis, based upon two examinations, January 27, 1936, and March 23, 1937, was first degree ground glass appearance and asbestosis of both lower lung fields.”

The Commission found: “That the widow first knew that her husband, W. S. Blassingame, had asbestosis some time after the autopsy report was filed, May 10, 1937; that notice and claim for compensation were made out July 19, 1937, and filed both with the defendant employer and the Industrial Commission July 20, 1937, or within 90 days as required in section 50% (o').” The Occupational Disease Act, including “asbestosis,” was passed in 1935 — chapter 123. It was an act to amend the 'Workmen’s Compensation Act (chapter 120, Laws 1929). This act says that “All laws and clauses of laws in conflict herewith are hereby repealed.” Therefore, the Occupational Disease Act must be construed in pari materia.

In Real Estate Co. v. Sasser, 179 N. C., 497 (499), it is said: “Amendments are to be construed together with the original act, to which they relate, as constituting one law. The old law should be considered, the evils arising under it, and the remedy provided by the amendments adopted, which shall best repress the evils and advance the remedy. 36 Cyc., 1164, and cases cited.” S. v. Kelly, 186 N. C., 365 (372).

The following provisions were then in existence, in which there is no conflict: Section 8081 (dd), in part: “Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident. . . . Unless it can be shown that the employer, his agent or representative, has knowledge of the accident, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, or the fraud or deceit of some third person; hut no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.”

Section 8081 (ff) : (a) The right to compensation under this article shall be forever barred unless a claim be filed with the Industrial Commission within one year after the accident, and if death results from one accident, unless a claim be filed with the Commission within one year thereafter.” This section, like the amendment of 1935, says, similar to the old act, “shall be forever barred.”

The claim was filed within two weeks after date of letter of Dr. Easom transmitting his report, and the autopsy report of the United States Public Health Service to Dr. Stewart, of Lithonia, Ga. The Commission has found that the widow first knew that her husband had asbestosis some time after 10 May, 1931, which was the date of the autopsy report of the United States Public Health Service; that notice and claim was made 19 July, 1931, and filed 20 July, 1931. Thus it will be seen that it was humanly impossible for the widow to have given notice of such death (death resulting from asbestosis) within ninety days after the death. To construe this section as contended by the defendants would be to deny the benefits conferred by the act in this and all similar cases. The context of the Compensation Act does not favor such a strained or technical construction. The cause of deceased’s death could only be ascertained by autopsy, as above set forth, and notice was given within ninety (90) days after discovery and action brought within one (1) year.

In Johnson v. Hosiery Co., 199 N. C., 38 (40), this Court said: “It is generally held by the courts that the various Compensation Acts of the Union should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.” We see nothing prejudicial to defendants.

In II Schneider, "Workmen’s Compensation Law (2nd Ed.), part sec. 554, at pp. 2002-3, we find: “ ‘The courts may not interfere with the findings of fact, made by the Industrial Commissioner, when these are supported by evidence, even though it may be thought there be error.’ ‘The rule ... is well settled to the effect that, if in any reasonable view of the evidence it will support, either directly or indirectly, or by fair inference, the findings made by the- Commission, then they must be regarded as conclusive’ (citing a wealth of authorities). Courts cannot demand tbe same precision in the finding of Commission as otherwise might be if the members were required to be learned in the law.”

In IV Schneider, Workmen’s Compensation Law (supplement), page 592, it is said: “ ‘Undoubtedly, if any party feels that the Commission’s findings of fact are not clear, leave the reason for its conclusion and award in doubt, or should be amplified for any other reason, he should ask the Commission to modify them by making additional findings instead of complaining in the appellate court that findings of fact, which are not inconsistent with the result reached, do not contain a finding concerning all disputed questions of fact which must necessarily have been decided in order to make and support the award.’ State ex rel. Probst v. Haid (Mo.), 62 S. W. (2d), 869 (August, 1933), quashing certiorari (App.), 52 S. W. (2d), 501.”

There is no evidence that the Commission found that the lack of the notice was prejudicial to the employer. The statute does not provide that the notice to the employer is a condition precedent (Wilson v. Clement Co., 207 N. C., 541), but it does provide that .the claim, if not made within one year by the claimant, “shall be forever barred.” This provision does not apply to the 90 days, and from a reasonable construction of the statute it seems to have been intentionally omitted. The Commission found that the widow filed the notice “within 90 days” as required by sec. 50½ (o), supra. If the widow is barred, what about the minor? Taking the intent of the statute, that under the facts and circumstances of this case it was never contemplated that the widow should make claim without being able to make a truthful one, and this was an impossibility until after the autopsy. By analogy see Nelson v. Ins. Co., 199 N. C., 443.

In S. v. Humphries, 210 N. C., 406 (410), Devin, J., for the Court says: “The object of all interpretation is to determine the intent of the lawmaking body. Intent is the spirit which gives life to a legislative enactment. The heart of a statute is the intention of the lawmaking body. Trust Co. v. Hood, Comr., 206 N. C., 268; S. v. Earnhardt, 170 N. C., 725. In the language of Chancellor Kent: ‘In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view, and the intention is to be taken or presumed according to what is consonant with reason and good discretion.’ 1 Kent Com., 461.”

In Cooley Blackstone, Intro, sec. 2, page 53, we find: “Intent as expressed. The fairest and most rational method to interpret the will of the legislator is by exploring his intention at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law. . . . (p. 54) As to the effects and consequences, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity,’ was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.”

The Industrial Commission found, among other facts, the following: “That the immediate cause of the death of the deceased was pneumonia superimposed upon asbestosis; that the degree of asbestosis with which the deceased was suffering prior to contracting pneumonia had the effect of lowering his resistance to the pneumonia germ which, according to medical science, is ever present in the human body; that the general condition of the deceased produced by such lowered resistance or inability to ward off pneumonia was the inciting or proximate cause of the fatal development of pneumonia and death of the deceased was proximately caused by the condition of the deceased which was produced and brought about by a weakened condition and lowered resistance due to asbestosis with which the deceased was and had been suffering for some time prior to the time he was stricken with pneumonia. . . . That the widow first knew that her husband, W. S. Blassingame, had asbestosis some time after the autopsy report was filed May 10, 1937; that notice and claim for compensation were made out July 19, 1937, and filed both with the defendant employer and the Industrial Commission on July 20, 1937, or within 90 days, as required by section 50% (o); that the deceased never knew he had asbestosis.”

The only exception and assignment of error made by the defendants is to “the judgment as signed.”

In Lassiter v. Telephone Co., 215 N. C., 227 (230), it is said: “It is established in this jurisdiction that the findings of fact made by the Industrial Commission, if supported by competent evidence, are conclusive on appeal and not subject to review by the Superior Court or this Court, although this Court may have reached a different conclusion if it had been the fact finding body.”

In Tindall v. Furniture Co., 216 N. C., 306 (310), it is written: “And the application of the rule of the conelusiveness of the findings of the Industrial Commission as to controverted issues of fact, when based on competent evidence, is not defeated by the fact that some of the testimony offered may be objectionable under the technical rules of evidence appertaining to courts of general jurisdiction, as pointed out in Maley v. Furniture Co., 214 N. C., 589, and Consolidated Edison Co. v. National Labor Relations Board, 305 U. S., 197.” There was circumstantial evidence.

The hypothetical question we think proper under our decisions. A similar hypothetical question was admitted in Shaw v. Handle Co., 188 N. C., 222 (tried before Devin, J.), and approved by this Court. In that case the question was the cause of the death of two men in the cabin of a boat. It was alleged that the boat was operated by a gasoline engine which was old, worn out and defective and would blow gas fumes out of the engine into the cabin. The weather was cold and the windows closed. The hypothetical question was answered: “Gas poisoning, monoxide poisoning” (carbon monoxide gas). Cabe v. Parker-Graham-Sexton, Inc., 202 N. C., 176; Keith v. Gregg, 210 N. C., 802 (807). In this case we think the hypothetical questions assume facts which the evidence directly, fairly and reasonably tends to establish, and were competent. The probative force was for the Commission.

The facts were fully sufficient to justify the Industrial Commission’s finding of fact that the proximate cause of death was asbestosis. The facts are distressing- — a young man, a bread-winner with a wife and child, in the performance of his duty to his employer, in an industry fraught with danger, was weakened by the inhaling of asbestos dust, and died from its effects. His lungs were practically closed by “ground glass appearance.”

None of the contentions of the defendants can be sustained. There was sufficient competent evidence for the Commission to find the facts upon which they found defendants’ liable. It has been said repeatedly by us that the findings of fact are binding on us.

We see no error in law. The judgment of the court below is

Affirmed.