Document 2jBMxqVnB4yEDNzQBakX78Q85

McNBELY v. CAROLINA ASBESTOS CO. 174 S.E. N. C. 509 *hlnk there Is any sufficient evidence that id W. B. Haughton's own antomobile was Crated by him under the "control or di tiofl, express or implied," of the defendant ^eico'te Manufacturing Company. Haugh- M jj, hiS answer, said that he was "an 1 ' t aDa representative of said Company" Isteelcote Manufacturing Company). The au workman is engaged, as distinguished from one which is caused or brought about by the employer's failure in his duty to furnish workman a safe place to work. [Ed. Note.--For other definitions of "Occupational Disease," see Words & Phrases.] tomobile was Haughton's and there is no ev idence that he was about his master's busipasa and so that the principle of respondeat pmerior would apply, in fact, it was being operated by Bolick who had no connection ^ith the Steelcote Manufacturing Company. YIjo constitutionality of the act in question is well settled by this court and the United States Supreme Court. Ashley v.' Brown, 198 C. 369, 151 S. E. 725; Bigham v. Foor, %fl N. C. 14, 158 S. E. 548. Cyc. of Automo bile Law (Huddy, 9th Ed.) 15, 16, 85, p. 2. Master and servant <=>373. Pulmonary asbestosis produced by em ployee's inhalation of asbestos dust during five-month period held "injury by accident" within Workmen's Compensation Act (Code 1931, 8081 (i, r, t). The term "accident" is defined as an unlooked for and untoward event which is not expected or designed by the per son who suffers injury. [Ed. Note.--For other definitions of "Accident; Accidental" and "Injury by Accident," see Words & Phrases.] We do not think It necessary from the ylew we take of this case, to consider the other question of plaintiff involved on this appeal: "Is the defect complained of in the 3. Master and servant <=>372. "Injury by accident" within Workmen's Compensation Act refers to injury produced without design or expectation of workman (Code 1931, 8081 (i, r, t). lervice, or proof of service of process, such Its can be remedied by amendment?" In Cyc. CLARKSON, J., dissenting. Of Automobile Law, supra, 84, is the fol lowing: "One seeking to claim the benefit of Appeal from Superior Court, Mecklenburg gnbetituted servied, must show full and sub- County; Sink, Judge. itantial compliance with the provisions of the statute In that regard." Action by Cabell McNeely against the Car . .For the reasons given, the judgment of olina Asbestos Company. From an adverse the court below must be reversed. 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 fur ther alleged that the room in which he work ed was improperly ventilated,* -and' that the ism* O *8 - - I-' -' atmosphere. therein was , impregnated with, MeNEELY v. CAROLINA ASBESTOS CO. fine asbestos dust, and. that-srtch , dust-was v' ' No. 494. ' permitted to accumulate by reason of the X Supreme Court of North Carolina. "... May 23,1934. . : negligent failure of defendant ,to provide a dust system or suction system, 'or to take > any other precaution for the'protection of the I, Master and servant =>373.' . health of an employee, and-fhat by reason of Pulmonary asbestosis produced by em- such negligence the inhal&ttonbf such dust jiJSIbyee's inhalation of asbestos dust over five- impaired and destroyed his health, resulting* month period held not "occupational disease" in pulmonary asbestosis. He further alleged outside purview of Workmen's Compensation that such injuries were proximately caused Act where employee alleged and proved that by the negligence of defendant to furnish, Injury resulted from employer's negligence in 'failing to maintain approved dusting or suc tion system (Code1931, 8081 (i, r). a safe place to work or to warn and instruct as to the hazards of breathing asbestos dust, '"Occupational disease" is defined as a etc., . ... ^disease which is the usual incident or re The defendant denied the allegation of neg `-/' Suit of particular employment in which ligence and asserted that both the plaintiff =>For other cases see eaiae topic and KEY NUMBER is all Key Number Digeet* asd Indexes PLAINTIFF'S EXHIBIT ^-1 V m r, >.- i- i ) taih.-*.c^v*l^a^^^pfe:5danges," bgbn'alle- gation aaaif procffWfettSsdrirdnjnry was pro IrigBlSt iBadPriafieflfi^jfen.- duced by the? negM&mieeof the employer? Both parties tayltfib"controversy are pre wSigp^and remedies*". TfiS de- sumed to have accepted the North Carolina "*`k~ v^faded? eonbributory^qe^i- Workmen's Compensation Act and conse skfobrisk; ahdthe gbttnte quently Bound by`- its temffi-^.Moreover, the '" ", * i - * * '"r evidence* disclosed that dt all limes the de ^latofilT tended- td^abow fendant had in its employ more than five em fodfcfciiiiS; fir fSc^-' Sefend- ployees, so that the jurisdictional question is JjnpnfiSf not involved. Code;i93I, | 8081(k).;ii Code 1931, 8081{i>, provides that ." `injury anff jvbicii wrqs. jjKwrljr and personal-injury' shall mean'only injury wgus.fii^ier that by accident' arising ojit/of, jpfijh thq",<jonrse sdcttsm.-pr dufifing of the emplpjrmepti and khali not indnfie a p^i^ejasployee9.:(rfae fflse^ itt-any-fo||5,^ mreept; where it results naturally $ n nfcffcj&w abatiteffifid from t3i& acci- ^`-lferentecea;*^i(S(a-: f Code; 1^31^:; i.;SO&t^ijppvides thab "the ^ [&35ra*-igQo^.jtdtd- rights and remedies herein granted to an fem'ployt^ where .he ^nd his. employer bave-ac- ftaa* I qoUr-f^isnet cepted tively, the provisions of thus chapter- respecto pay and, accept compensation on ............................................ .. account of personal injury or death By ac- 5_ Bad thirtyyte&gSt- *ar tt-. " i dtttofc wafts `..^Jt.j^fe to cldent, ,shall exclude , all other rights and cbughitog ,so Sad. fc; the/ raomtogsvwlien.' I . jWotdd ged: o^jHiaferf would cough anywhere remedies of such employees, his personal,rep resentative, -parents, dependents or next in kin, as against employer at common law, or ^Unnfes... ii h- * : mesv^rst t^taoDt&s X yrorked 1hi. the Cfeo- otherwise, on'account of such injury, loss-of 'Una Asbestos Company I never-lost a day. service, or death," etc. -The plant .fto sS? many, different grades-of The evidence tended to show that the asbestos during jthejtime I worked there X plaintiff entered the employment of the de really don't know the names of the grades. fendant about December; 1930, and stopped * * * When I threw it in. the machine work on account of disability in March, 1932, smoke, would fly- from-the dust. * * * A which constitutes a period of approximately `lot of limes it:got so dusty it wonld settlecm fifteen months. The plaintiff testified: "I ' the e-le- ctri-c bulbs.".". * A physician examined as v .; a witness for did not have any trouble of this kind prior to the time I weBt to work for the Carolina plaintiff testified that plaintiff was suffering Asbestos Company. The first ten months I with pulmonary asbestosis. worked there X never lost a day." Conse At the conclusion of the evidence for the plaintiff, the trial judge sustained a motion of nonsuit, and the plaintiff appealed. quently, the "injury" asserted by the plain tiff began and progressively produced disa bility within a period of approximately five months. Plaintiff said: "I never paid so B. S. Whiting and J. L. DeLaney, both of much attention to it until the belt came off Charlotte, for appellant. the machine I was operating one day and 1 John M. Robinson and Hunter M. Jones, went up on the ladder and tried to put it both of Charlotte* for appellee. back, and I almost fainted up on the ladder. * I came down off the ladder and sat down BROGDEN, Justice. a few minutes until I got over it and went (X) Is pulmonary asbestosis produced by and told the boys to have the belt put on for the inhalation of asbestos dust by an em me."1 ployee 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? [1] Upon the foregoing facts and pertinent provisions of the Compensation Law, the plaintiff contends that he is suffering from what is generally denominated in compensa tion cases "an occupational disease," and (2) Can such employee, so injured, main- that such disease is not compensable, and, or damages, upon all*, it such Injury was pro. nee of the employer? i^ktroversy are projt^Pie North Carolina sation Act and ccm*. s terms. Moreover, the bat at all times the dtnploy more than five emjurisdictional question 1* 1931, 80810c). i), provides that " `Injury ' shall mean only Injury out of and in the course and shall not include a i, except where it result* voidably from the accl- Sl(r) provides that "the s herein granted to an emnd his employer have-He ns of this chapter respee* l accept compensation.^ il injury or death by :de all other rights.v*i:; mployees, his personality ts, dependents or nexfc"t(V iployer at common unt of such injury*-/" ' etc. zended to show that-1 [he employment of |eem^^l930, and. If di^B'ty in Marc I a of approx I he plaintiff testifiljS rouble of this l to work for^thej The first tea: iver lost a day*"! Jry" asserted byv ogressiyely prd riod of appr : said: "I it until fihfel Is operating oner ladder and tried': It fainted up on ] the ladder J I got over > have thebeMrs | agoing facts and/ Compensat that he is Idenominated-lir--' ccupational is not-coii" MoNEELY v. CAROLINA ASBESTOS CO. 174 B.E. Kr. a 511 refore, his sole remedy consists in a com- to his employment with the defendant wlth^n-iaw action for damages. The legal basis out suffering any ill effects from the work. tlJe contention is that the Compensation He alleged in his complaint and offered evi- * t applies to "injury by accident arising dence tending to show that his injury was A t of and in the course of the employment,". produced and proximately caused by the neg- ,1 as an occupational disease develops ligenee of defendant, in that it' maintained ", 'jy and progressively, such cannot be no dusting or suction system such as was deemed to be an "injury by accident." approved and in general use in other as <TI,e defendant contended that the injury bestos plants. Consequently, his allegation to plaintiff was either compensable, or, if and proof both established the fact that his not compensable, he was precluded from injury was caused by the negligence of the bringing a common-law action for damages employer, and hence was not "the usual in hv virtue of Code 1931, J 8081(r), supra, and cident or result of the particular employment therefore in either event was not entitled to in which the workman is engaged." That is recover. to say, the injury was not produced by the inherent nature of the work itself and classi pjie term "occupational disease" has been fiable as an occupational disease, but was variously defined and interpreted in judi produced by the active negligence of the em cial decisions and text-books. Schneider in ployer and his failure to exercise reasonable Workman's Compensation Law, vol. 1 (2d care. gd) p. 644, said: "A disease contracted in the usual and ordinary course of events, [2] However, the plaintiff further asserts which from the common experience of hu that his Injury was produced gradually and manity is known to be incidental to a par- progressively through a period of five ticnlar employment, is an occupational dis- months, and hence was not an "injury by ac- gflge, and not within the contemplation of cident arising , out of and in the course of tie Workmen's Compensation Law." Elabo the employment," and. that the compensation tation of the definition is found in Gay v. statute cavers only such accidental injuries, Hocking Coal Go., 184 Iowa, 949, 169 N. W. and, therefore, as the injury complained, of 360,363. The court said: "An `occupational is not accidental, he is entitled to maintain jjlsease' suffered by a. servant or employee, if a common-law action for- damages as the It means anythingas'distinguiBhed - from a sole remedy open to hhni The-inquiry then disease caused or superinduced by an action- s-h--i-fts t-o t-he quest-ion as --to 'W-he~ther t-he -in able wrong or injuryisneither more nor jury -was accidental within-the meaning of jess than a diseaseTwhiehis the usual-inci the Compensation Act, and hence compensa dent or result of the .particular employment ble. The term, "accident" was-defined by this L& which the workiimnCjh rnjg^d,-as dis- court in -Conrad v; Cook-Lewis Foundry Co., ,'fe caused or ...ought about'byffie'S(pIoy^Sjfa!ltirelnhis. <j; 523/153 S. B.*26^^26&. *Che court ieT&dwbxa `aceident> all i^ed here,rbas^ |<toty to furnish.' him-hrstffe place /to work, been* defined- aaian nnludked l&hr-^nd raitoj ffte- pmploverfalls to '-provide a reasonably place to work,/ _ Be requirements aletteAtetnte 'With Theeourf--further Baid: ; Tn^nstrulng' -the : thereto,1 and.as a:;restdt-'df.snch heg- the employeeJia- Injure^^e Tiabili^F AeC wd'afittefcremember ! such employer-eannofbe avoided-by call- . ministering ;:the daw of ne(l|gei}ee,' - Under such injury an.`aeeupatfcaal disease or tbafe 3^,da jempl^ee-dihSke^^r.rdaiaages. showing that diseage^nf -tbgt nature is. chly twbite^eyioyury the actempiairiment >iffsam% 'cfc- ; pployment, even when. all ..due cate-has under omxSIderalaon containsj<eIements of a sen exercised by the -onploygr." '< , V- mutualicoHcesBion.between: the-employerabd' These definitions have beea wxdeTyquOied the cmployeeby whichthe questipnof-negll- have been generally aeceptedby courts gehte-fe^Bminated. -".`Both -had -suffered un text-writers ascorreet. AsBunringtheir der;thb old system71 the employers by heavy ness and applying them to the facts judgments,'- the workmen through the case atb&n It is -obvious that-the the oid defenses or .exhaustion In -wasteful' tiff was not injured by means of an- litigation..sBoth wanted peace. The-master, ipational disease,"- Thefplaiotiff testl- brexehangefor limited liabUhyywas willing that he had. worked at an aabestos plant. to j*y/on some claims infutare,Whereinthe Charlotte for .about.-eleven -years_prior; pastihere bad;bedn no Babifitynt all. -The . =. . .u --,r$ s?:. V "i :eri* eef<[ ,. .. servanfewaawEHngr notonly to- ^st&>tri* at her place of labor, in toedoing of her com al twrjsjEB bufcto accept far less toaubchad mon and regular task, makes it clear that often won in, -court; provided be was-rgure- to the phosphorous poisoning happened without get- the small sum* without having to fight her design or expectation, and so her injury for it'* Consequently, it is obvious that the .was accidental. * * * It was by chance word must not be used in its-restricted and that employer did not use due care, and by J?C teehnlcal.sense, but in a wider and practical chance that the vapor of.phosphorous was sense necessary to give workable effect to the where its noxious foreign, particles could be proper, and juBt administration of the Com inhaled by the g}rl. It was by chance that pensation law.- Variable definitions, have the inspired- air carried, these particles into been given by the coarts to toe words "in her system, sickening her, and causing a jury by accident,*' "accidental injury,'! etc., necrosis of the jaw after fortuitously finding and the applications, of such' definitions to a lesion. The injury thns inflicted upon her , given-cases <n> states of fact have resulted in body was accidental by every test of the a. divergeneeot concept and interpretation word, and its accidental nature is not lost which eannot be harmonized or brought.into by calling the consequential results a disease. : unison, ^Ifideedf a study of. a host of cases Nor can the fudamentally accidental, nature produces thneoncinsion,that the lines of in- of the injurybe altered by the consideration tarpretaUon must be treated, as parallels In that the infection was gradual throughout an note90 of the Workmen's. Compensation indefinite period;, as ibis-simply implies a Law, snpra, page 643, dozens of . cases are slow development of the malady, or that, in .asseahhlt^:'; Stee^ also, In Te Sullivan, 365 stead of a single accidental injury, there .Mas&^^ieiN. E. 45T, 62 A.D.R. 1458, was a succession or series of accidental in and Annotation; IS A. L. R. 113; Tintic juries culminating in the same consequential Milling Co, v; industrial' Comm,, 60 Utah, 14, results.'' ' 206 F. 278, 23A.L. R. 335; Industrial Comm, It seems to be generally conceded that, if v. Both, 98 Ohio St 34, 120 N. E. 172, 6 A. an employee should suddenly inhale a volume Ii.-R.1466; Iwanicki v. State Industrial Acc. of air laden with poison or other destructive Comm., 104 Or. 650, 205 P. 990, 29 A. L. R. agencies, producing injury immediately or 691. ' within a short period of time, such injury Well-reasoned cases proceeding upon op would be deemed to be accidental or "injury posite theories are Jones v. Rinehart & Den nis Co. (W. Va.) 168 S. E. 482; Victory by accident," but it does not seem that the time element should be paramount or con Sparkler & Specialty Co. v. Francks, 147 trolling. Gabe v. Parker-Graham-Sexton, Md. 368,128 A. 635, 639, 44 A. L. R. 363, and Inc., 202 N. G. 176, 162 S. E. 223. If so, the Sullivan Case, 265 Mass. 497, 164 N. E. 457, courts are forced into the field of speculation 62 A. If. R. 1458. The West Virginia court in an effort to determine what is a reason in the Jones Case, supra, held that a disease contracted by an employee was not compen sable unless directly attributable to a defi nite,-isolated, and fortuitous occurrence, and that in such cases the injured party could maintain a common-law action for damages irrespective of the Workmen's Compensation Act. The Maryland court, in Victory Spark ler Case, supra, said: "In this ease, the oc able time or what standard of time shall be adopted in determining the rights of the parties. Moreover, it would not seem that the unexpected, unforeseen, and, therefore, accidental inhalation of deleterious matter could be deprived of its accidental quality by the mere consideration of whether it took five days or five months to produce the same result. cupation of the girl as an employee in a de partment of a manufactory of fireworks was _ simply a condition of her injury, whose cause was the definite negligence charged against the employer. The most that is warranted [3] An examination of the Workmen's Compensation Act of North Carolina dis closes many uses of the expression "injured employee" without the qualifying words "accident" or "by accident." So that, un to be inferred from the allegations of fact in less we attempt to whittle down or en the declaration is that the phosphorous poi large words or undertake to put big threads soning alleged was the gradual result of the through the eyes of little needles, it negligence of the employer. As this negli would seem manifest that our act did not gence was a breach of duty to her, it was not undertake to limit compensation to cases to be foreseen or expected by the worker as where the injury was begun and com something which would occur in the course of pleted within narrow limits of time, hut that her employment. The fact that she continued it used the expression "injury by accident" everydl to an injury prodl :or expectation of tlf section 13 of the act (I es; "No eompensal If-toe Injury or death 'I fiitoxIcatJon of the err | Intention Of toe emr himself or another.' accidental injurie iiirawn from the he he logically deemet few.y, m'^consideration of tl pf the opinion that i complaint was comp '.Qfthe trial judg ,. J,, dissents a 680 EFIRD et al. v. SI No. 445. Supreme Court of N< May 23,1 ' li LImltation of actions < U&ii Clients' action agains 'ance of loan procured by : . and allegedly nnaccounte "led' by three-year stat 'tfhere no demand prior 1 action had been made, s ' did not accrue and stati run until such demand < 2. Limitation of actions < Where a fiduciary respect to money due, does not begin to run ux fusal (C. S. 441 (1). Appeal from Superio) ty; Sink, Judge. Action by G. C. E against O. J. Sikes and a judgment dismissing plaintiffs appeal. Reversed. This is an action to i by defendants to the p' =?Fur o'UcfP cuse: 174 S.E.--33 EFIBD v. SIKES 174 S.E. 2J.C. 613 In its common-sense everyday conception as ing for the proceeds of certain notes nego referring to an injury produced without the tiated by the defendants, as attorneys for design or expectation of the workman. In the plaintiffs, on or about January 17, 1929. deed, section 13 of the act (Code 1931, 8081 The fiction was begun on April 7, 1932. The (t) declares: "No compensation shall be pay defendants relied for their defense on their able if the injury or death was occasioned by plea that the action was barred by the three- the intoxication of the employee or by the year statute of limitations. wilful intention of the employee to injure or kill himself or another." Manifestly, all other accidental injuries, not specifically withdrawn from the benefits of the act, should be logically deemed to fall within its purview. The evidence offered by the plaintiffs tend ed to show that on January 17, 1929, the plaintiffs executed and delivered to the de fendants, who are attorneys at law, two notes, one for the sum of $2,000, payable to the or der of the First National Bank of Albemarle, Upon a consideration of the whole subject, we are of the opinion that the injury alleged in the complaint was compensable, and that the ruling of the trial judge was correct. Affirmed. N. C., and the other for the sum of $500, pay able to the order of the defendants. Both notes were secured by a deed of trust, which was executed by the plaintiffs to the defend ant O. J. Sikes'as trustee. -The defendants negotiated both notes to .the First National CLARKSON, J., dissents. Bank of Albemarle, N. C., and received from said bank, as attorneys for the plaintiff, the sum of $2,500. As directed by the plaintiffs, the defendants applied the, sum of $1,875 to the payment of certain debts.ane by file plain tiffs, They have not Recounted to the plain tiffs itor the balance i>f, the proceeds of said gates.. ..No derngnid-foE SUch. accounting was 206 N. C. 580 . EFIRD et a!, v. SIKES ef a!. made by .the.-pIaxntifiEs, until the- commence ment of thlsjacfictn. . ... ' -, .4' .. No. 445. At the dose of theevidenee for the plain tiffs,the defendants moved for. judgment as Supreme Court of North Carolina. jf nonsuij, ^e^^o^fsailpwei;,^.--'.- : 'V t^B^i%:jna^^ri^^sniiss%^^jejas{ion,-,ithe 1. Umltatlon * Aoflons:<?=386Cf).'< . ~;.t plaintijffsappealed.tD tbe.'SnprmeCotirt.: Clients'- getion-ugainstattorneys-for,bal- jBogle' .^-Boglei' iir^apjpa.- ance of loan procured by attorneys for cjiexits inf&"\ Fx;.-' and gHegedjy^ nxiaceonnted.';ffflc:^l3 bar-' red d>y wbefpjjd`aemariS;`piibr fo^mmeaiegEseat^T- acabii did no^iacciue^Sid'-stiSijtjerffldi'diot^e^h-TO' ran uhtilisfe^iMSriysam^^ljii . .Vs. 2 -F#*; , TOere^dSuc^gf4fl&tiu9.;-e5dsfs sswMh respect -t<7^oittgr&aej- Appealfrom Superior' ty; Sink,' Judge. . of; the. deKver- Acfion .by-,GV C. .Bflrd and. Mary JESB$& against O. J, Sikesantf. B. Morton.. From .mad wttbfa ` . a judgment dismissing plaintiffs' action, .ittte -t^ee^earafrma^e^^.^tt-ivHtth'the plain- - plainafts appeal-,- v; -Tzliy. .tfiffis-demtoded a^tE&smattiF - r "; . . ` Reversed. 'ft] Itfc7w^l!etae(toflm6i^ifte-afidadary ;. Thisisan actionto recoverthe baJancedm relation exists,betweentthfe-pastiee; with re- - - by defendantsiothe plaintiffe>nn an account- . speefc to moriefr yce by bhe Jbsfche 'other.-the" =>Kor/j*aer cane* tee tame topic acUJaEyittJirBE&4h-H X&y'Wlmhwlilfl&ieji&J&i&ui J74SB.--38 ,; .- ... '