Document LpJGmvygZxGMwdp6zVL2qaXYz

-^ 5 S'hSXv , i tS-Magw ', bm^fe^^V&v'iBWlpr^aiBsIwt'-'SpMiai Jhdgeii'fiivw-" -*&'- -? .'^'^',(ikCh'~'.< .TrScei^pg''miier^e'^cfrMields Com- --*-*'' --' --7\ *<-' ---- - . w. a#ipa ^ltH&.^ayd^-'--CuIff^5r4j^ee, riiprmji'Humie^ aa$, i&g&pm S.. Blassingame, vndffisr!'of 'JW~`^S'^^ssTtig^pe^ydeceased 6mploxeb| an3>By P%^''Aim31assfngame, minor daughter of-WC S. 'Blassingame, de ceased employee, opposed By the Southern Ashesfe5sw- Gompaiiy,' ''einpfey%,";ln3- the carrier, to oh'lalff^mhipehsaffotf-^r. |EtPdei&t' ofW: S. JBla\ringaihfe,j,dS'c6asea^,en$Io3?e^;y:'Ott*i'J'i hea'rih^Bd^l^^'^cSmffissJcmetl^ffie daim Was J3eiB^E?''i6SfcappeaF t& tfifr^-^211''^6ni: . husslon)1 fS^^othmissmaer^^fimrai^ 'was reversed,: andihe : tdH cor JfedSim- ,.t r^o**^OTgs5.ys-wi,^,a v r,/,This j&a cl^im, n^e-BjPpImntiffs against the: defendantg-before'the.'^orth; Carolina Industrial Ggpunissron^ und^.. the.-ft.-..G. Workmen's Compensation-; Act; .for die death-of W. Si Blassingame,;whO' was- an S> employee of the Southern. Asbestos Co., the^ employer, - and,, defendant^ Maryland Casualty Co., "carrier;: ,, The claim iwas for'injury resulting in '2i7 JNiD. 223'"" *' ' > . s' BLASSINGAME et at. v. SQUTHERN ' ASBESTOS CO. et al. ` No. 525. -. death, on April 1, 1937;' in Lithonia, Ga. It is alleged that the death was caused by pulmonary- asbestosis resulting in lobar pneumonia. On the hearing before Com missioner J. Dewey Dorsett^ the claim was' . Supreme Court,of North Carolina. - March 6, 1940. denied, and on appeal the hearing- Com missioner was reversed-,by the Full Com mission. Workmen's compensation =>1234 The evidence was to the effect that W. Requirement of compensation act that S. Blassingame, upon -his death on April 1, in case of death from silicosis or asbestosis, 1937, left a widow and one child, a minor, written notice to employer must be given the plaintiffs. That he worked for defend within 90 days "after occurrence," was suf ant Southern Asbestos Co. for seven years ficiently complied with by widow of one who off and on. The last period was from allegedly died from pulmonary asbestosis January, 1936, until he died. , From 1933, resulting in lobar pneumonia, where she gave while working for defendant, he developed l. notice within two weeks after date of letter a slight cough which continued until his of medical expert transmitting his report death. It got worse and worse from and autopsy report of United States public January 1, 1936 until his death. t health service disclosing the theretofore un Mrs. W. S. Blassingame testified, in known fact that deceased suffered from as part: ' bestosis, notwithstanding that more than 90 days had elapsed from date of deceased's death until date of letter. Pub.Laws 1929, c. 120, 50% (o), as added by Pub.LaVvs 1935, c. 123. "Q. What was the condition of his health with reference to his coughing in the spring of 1936? A. It was terrible, that is when it was so bad. "Q. Well, now, just describe to the BARNHILL, J., STACY, C. J,, and Court how he was affected, what effect this WINBORNE, J,, dissenting. 1 coughing had on him? A. Just at the BLASSINGAME v. SOUTHERN ASBESTOS CO. 1 S.E.M478 N.C. 479 time his feet hit the floor in the morning across the bed. * * * 1 didn't think he would start coughing. I have never that he would get up any more that night, heard anybody cough like he did. Plenty I felt like he was too sick, I insisted that of times I have seen him cough until his he undress; just about the time I got him finger nails would be black, as black as undressed he had a chill and that is when they were when he died, his head and face I sent for the Doctor. would be just as red as fire, he coughed "Q. And what doctor did you send for? continually from the time he got up in the A. Dr. Thos. W. Stewart. morning until he had eaten breakfast. "Q. About when did he get there? A. After he ate breakfast it seemed just to get I think it was around 7:30 or 8:00; I will a little better, he'd have a bad coughing ,say it was around g;00 0-dock spell and get over this. He coughed con tinually from the time his feet hit the floor in the morning until he had eaten breakfast every morning. "Q. Did that coughing continue on up until his death? A. Yes. * * * ' "Q. State Mrs. Blassingame, whether or not he was examined by doctors- and if so when and what doctors? A. You mean at the plant ? a , .. Yes? A. Well, the state doctor "Q. I believe Dr. Stewart finally pro nounced it pneumonia, did he? A. Yes, sir. "Q. That was on March 26? A. Yes, sir. "Q, He died on April I, I believe? A. Yes, sir. "Q. Mrs. Blassingame, during the period from the time of your marriage, did Mr. Blassingame have any other illness' of any consequence? A`. .Ho, sir, nothing except 3r. Easom, examined him m catarrj3) he was kind of bothered ..with - . , that is just a few days after thinly he came back here-and went to woorrKk anad t-c.---- then they examined'him bn Tuesday before cough."' - we left here to go to Georgia; Friday,-! * .. ' ^ v $ -n - ...Dr. R..JVL.^Gallant, a^edipa^^ef^.fgg- . ^ tified, in part : . JiJQ, Did you ' know ^BlaSsjngamefegi ., -a - w--'?M;'r T f#; tc^^bfiel^odhe'r and' saidit done. him on andP______ _.tune-an ? solutely no good. Well, after22 years >ex- S-ray^rnade of his'fungs'^^cSr^howed.a ferience. Thave; always Been able'up-until ground glass appearance,-in/'th.e -twill por saw. him to at least relieve anybody-tem,- tion, of.either lung field. andwas-diagnosed porarily, eyen though I.wasn't able to cure as asbestosis No. 1; that in the: early part them, I gave him the strongest cough, seda-. . of March, 1937, he. was treated-by- a doctor -tiyes that I knew, including some morphine for. a. peculiar chest or bronchial condition V in it, he came hack and. said absolutely no characterized . by . uncontrollable" coughs, -relief and- with his chest symptoms,. that eyenafter administering .seda^Lyes or nar- t/.Be had X told Kim I jusftdfdrft know what jcotics .which,..usually controis^^or, relieves . -the 'trouble was;'" he had some 'kind.'of', .fiameXof a short timeatfeastj^thathe was -- peculiar condition 2a his "chest that in122, rprexamiped'op fifarch,'^1^32^by medical years' experience. .! had -never- seertvanyi , ^gxgefts; "thafihp-exarpmatioa'o^ualungs .thing, like it;dlKeionly^thing I" saw* to-ido-; :,at'thah rime," showed;f^>.nstan^jhar'exack- 'w^;.fiq. treat hlm..symptomatical and; wait Png rales, in Both hasesrfiotfi^tefiQfiy and < fp|;:de^lopm.entSs-J[rJtne^Ae.-was up against, posteriorly, the diap&yam. t|em^ to de itStX didn't larbry what to do, I toldhinE.X Scend wholly onfiotE^side^l^sS^ndltion at w;oaid,;eidier`^uggest some, so-called- spe-;. that tune was diSghosedjaba^stosis; that - cafilist or. fie could", slide to me and. Rfido", ife* went,;-fi)5?Mtfi)ma^?i3jfPhi*March' 26, ^ue^5estJC_ coul^ he'came hack and a^finie. -IPdFj'-afrivfii^th^felaboat ScCOif^M-; that '"or/t^b seeriied tp'ije!*a;fittle bit better;, jhe he wasaiclr. wheff he~amved?:aihd-.. before ^treatment'`seemed to .fie no good, thhfidxt . 8:00 o'clock P. Ml of the same' day de tlih^llieardheWas dead down in-Gedteik. veloped a chill; and. high fever,7was cough ing and,expectorating.pEune'colored- spu -t"."Qi pidyou.jeyer see copy of .thejceport tum, had a- most.peculiar^,sounding lungs, ' 'of. the, autopsy'made'by,the IT. S. Public sounding very different.than- that,-that was Health' Serviced" A." Yes, s'ir, I was sent found - in ordinary - pneumonia,! cases,,, his a copy of it and also I received a very nice .condition was- diagnosed, as.pnuemonia, lo- courteous letter from the doctor who treat .bar, right upper and middle.slpbes from ed him. which he died on April 1,.. 1937, if the "-Q. Dr. Stewart? A.- Yes, sir, saying -that he had sent the letters properly pre pared--saying that he had sent the lungs properly prepared in formaldehyde to the State Laboratory, he had asked them to also Commission, -should. find; those facts from the testimony and greater weight, have you an opinion satisfactory to. yourself as to what the proximate cause of -his pneumonia was. A. I do. send me a copy of the report and which , I "Q. What is that opinion? A. Fneumo- thought was very nice indeed and which I nia-asbestosis. ' received in due time. "Q. What do you mean by that? A. I "Q. Did you study this report on the autopsy? A. Yes, sir. "Q. Did you get also a copy of Dr. Easom's report of his two examinations? A. Yes, sir. "Q. Did you study that? A. Yes, sir. "Q. Well, doctor, from your examina tions of the report of the autopsy made by the U. S. Public Health Service and the report of Dr. Easom's examinations of the Medical Advisory Board and if the Com mission should find that W. S. Blassingame at the date of his death was 27 years of age, that he had worked approximately 7 years in an asbestos plant as a weaver, that he had had apparently been in good health prior to the spring of 1936, at which time mean pneumonia which was brought on by lowered resistance due to previously hav ing had asbestosis. (On cross-examination) "Q. At that time you knew he was working? A. As well as I remember he wasn't working regular, if he was he wasn't able to work. "Q. If it should be found that he was working regularly from the time you first saw him the first week in March up until March 25, have you an opinion satisfactory to yourself as to whether or not he was able to work? A. Yes, I have. "Q. What is that opinion? A. I don't think he was able to work, any man with the condition he had and shortness of breath, should have been in bed. he started coughing very badly and con "Q. You don't think he should have tinued to do so especially in the mornings worked even though he worked? A. He until the date of his death on April 1, 1937, should not have worked even though he did that he was examined by medical experts work." .... mt-tmv* ^- '-Without setting-then! think- the- hypothetical ;ised on th&.facts of-rec Dr. J. Rush Shull, a< pert, testified in ptot "Q. Dr- Shull; I b _ considerable-experienc observation of. asbes not? A- Yes, Ihave with-it in the'lasV-4- "Q. Doctor, have entered..' im fl&rphrfor 'tv-have had four. . Bdl :r >;Hewas-..askeddhe >} tions as Dr. Gallant "Q. "Where I saic 19377. AivYes,. I,t --- a proximate cause t "Q; Xii; other wor " imate cause of his ' don was; have you - to -yourself as-to wl of the pneumonia >: opinions "Q. What is tha hestosis thathe had Dr. W: M. Sumr "Q Where did yot ing? A. Univei and Emory thrive "Q. You spec' Yes, sir. "Q. here You have in Charlott A. Yes, sir. "Q. Have yor asbestosis cases? "Q. How ma A. I have done three others cl tissue from four "By the Cour is an expert. "Q. Have y Medical Advis Miller's report A. Yes, sic." H__e was as) question as Dr do. What is tl 7 S.E.2 nd at that time an gs which showed a e.JBtthe wall poraSBas diagnosed at in' the early part treated by a doctor bronchial condition ontrollable coughs, ig sedatives or narontrols or relieves t least; that he was 23, 1937, by medical iination of his lungs constant, dry crackboth anteriorly and ram seemed to deides, his condition at d as asbestos is, that Ga.r on March 26, out 5:00 P. M.; that arrived and before ' the same day de li fever, was coughprune colored spuiliar sounding lungs, than, that, that was neumonia cases, his ed as pnuemonia, lomiddle lobes from pril 1, 1937, if the nd those facts -from iter weight, have you jy to yourself as,,-to nise^Jfciis pneurnonia oinion? A. Prieump-' . ' j;, lean by that?^,A.T3 h was brought onJlryVr ; to previously,fefer--.. - I' don) r fhAt-* is working? A^.As-; he wasn't wdfeihg. wasn't able: to'wprk.r: found tbgt hew?a$f^ un fee tune- yod^strJ Jc in Marfe.np feilaU: i opinion,sa1isfe(fejjgy.5 ither or not he -was ' , I have... opinion? A. I, don't ' work, any man'wife id and shortness _<>een in bed. .. nk he should - haver he worked ? -A.-v0e :d eventhough.be * :V" :l4SSKf ;Te BLASSINGAME v. SOUTHERN ASBESTOS CO. 7 S.EJSd 478 N.c. 481 Without setting them forth in detail, we think the hypothetical question was premised on the facts of record in this case. Dr. J. Rush Shull, admitted to be an expert, testified in part: "Q. Dr. Shull, I believe you have had considerable experience in examination and observation of asbestosis cases, have you not? A. Yes, I have had a fair experience with it in the last 4 years. pneumonia was the contributory cause or proximate cause, the asbestosis was the proximate cause of pneumonia and pneu- monia caused his death, "Q. Was the proximate cause of pneu- monia and pneumonia caused his death? A- Yes." , W. S. Blassingame was a weaver in de fendant Southern Asbestos Company's plant--a broadcloth weaver. "Q. Doctor, have you ever performed or entered in the performance of an autopsy on an asbestosis victim? A. Yes, sir, I have had four. "Q, Doctor, have you read and studied the report of Dr. Miller of the United States Public Health Service and report of Dr. Easom of the Medical Advisory Board? A. About this case? "Q. Yes, sir. A. Yes, I have." He was asked the same hypothetical ques tions as Dr. Gallant, and answered: "Q. Where I said 1933,1 meant 1936 and 1937? A. Yes, I think his asbestosis was a proximate cause of his death. "Q. In other words what was the prox imate cause of his pneumonia, the ques tion was-have you an opinion satisfactory to yourself as to what the proximate cause of the pneumonia was? A. Yes, I have-an opinion. "Q. What is that opinion? A. The as bestosis that he had." Dr. W. M. Summerville testified, in part: "Q. Where did you get your medical train- Dr. H. F. Easom, an expert, testified for defendant in part "Q. What is asbestosis ? A. Asbestosis is defined as a disease of the lungs caused by the prolonged inhalation of the asbestos dust and characterized by the forming of fibrous tissue throughout the lungs. "Q. In lay language, what is fibrous tissue that you find in the lungs of as bestosis victims? A. Fibrous tissue is com monly known as scar tissue and it is the response of normal tissues to injury. "Q. What does it to do to the lung? A. It eventually encroaches on the air con taining portions of the lung and destroys them. - ' `' "Q. What are-the usual symptoms, that, you find in a man or ,a woman suffering with the disease known as asbestosis, .that is .fee', clinical .symptoms-? ^;{"Well,..|om quite a while you .may not have any .symp-,.. \ toms, anyv characteristic, symptoms, that;is4:' ".. in,.fee early .stages;,.-but' usuallyCfee,'mqj3t; "i. prominent . shortness sdirbreafe'.!. ,f, - N""1 ,rd|4 "Q*. Tu sPecfe&e " Patholosf? M "Q. You.have practiced'your.prpfession; ____ ______ ______ _ here k Charlotte -.since jrdu gnfekfedt; A. Yes, T* , " <*a*ise- jn--'i---uxfc "Q. Have you had any experienceiiafe ijpersdh-mifSt^1' f fee-jRffej^ieiifei asbestosis cases? A- Yes, sir.. T:,__ "Q. How many icaseg-have-yomseeal' ky-7pp^bn4,^^rhe;:ti^ttJrtAah)^j^ffi A. I have-done autopsies on two. -Studied three others* clinically .ana studied the tissue from four. . T "By the Court: Let fee record show be is an expert. ' "Q. Have you .read feie report of the Medical Advisory Board and also Dr. Miller's report of autopsy in this case? A. Yes. sir." . -(Our fcrasS examii&pQn)^/^ - ;"Q. I^^I.Jheve you'stated hestosis is^feafeyirti reraction^pf^fee.'dungs wfs. |q - I .wish you would ?!>' . more fully, the redaction of fee 'luhgs-^m*. , - asbestosis? You me^ff^cfqitioff^ ^f, the damage done By theT-dost?r '#3 He was asked, the same hypothetical "Q. . Yes. A. JEheicfust .fibers .usug8xff3 question as Dr. Gallant, and answered: *% lodge .in fhe.hronchml' do. What is that opinion?. A. I think fee scmi&jhaniuir- iriifetd fee tissues 1 . -' V.V- itf^Ee-'brod ..... '`^'^seSs^ de- - tpfe4|V16pment of fB^5ca3f;ft^fr'#d!d*i . .... .,. ..idst-jas^^p^iil^sfeija'iteed. or S*r.'_... %..................... ^%cranecttanr wplhjl# dedh,jGr the p^gappaia Ifom ^rbjq|j Ije <jiedjK,and award -^t aad set up thisfiiitatidn^e&Kia^ to the ffifepawattetedoses-'diai'paitdSaJarlpor- aaotherbwords; Gepnsssioh. .afteT'.^ca^f# ^staax^of; the ; :; &'2oytp of theJuh^dofe^o^iiot|Ji'Jk|. evidence'And opinio%d|df^J^t ^^Find- .,' ft ,Htr.CQmp.?nsatip% wasi.dem|d.,ibp;, wacated fiJ46SKK-Sa: S.6i^i|SS.i*fu vand care ,-^^d-Full nja' '^i'Fihd- :.;ih'e^ull^m^sj6filxdn'dti0e''as a '-matter- .cS^'-paa /ffi^^itibh'Tawf^jhatlfilfi^^atlii'ease-' is *$^%Wii&siS!'asp.?thaf^a5hros`&-5t<!ocatfdr * lAri'-awaVd--wds" made -for ^ t^oug|pub,;tKe. lungs ...at^any;jjfaiBdcuar paintEfs*ij.,'t58?.; m..i paft- oiliibenrj,,. ^.*-ajfe rconfiigjj'lto *?Th&--defenSaHt^ ma'd^huifterouS? excep V:* \z<U?J^\ir3 #*CV tions and assignmentsr' ofs-error. and;appeal~ "Q;: Both 'Kings ?*. A. Both iungs^.j^-f s edltoj the:Superior: Court.- The;Court. below 4--To:-'the" hypothetical question, ' he-^an- swered-that-itcdid not play'any .appreciable part-'-" .-.' ............... *- -* --c.j ; Dr.- J,'Donnelly, an expert, testified' in part: - : - `' - '' " "Q. From 'the' reports dt the films what did you conclude to the findings upon au topsy of the condition of the lungs? A.I think he had an early asbestosis" '' renderedithe following:' judgments "This <5tuse coming..oh to beheard affhe October lSp.^SpExlTa-Term-ofethe-Superior'Court for--Mecklenburg- Cciimty, and being heard before His Honor, A. Hall Johnston,, upon appeal by defendants- from the North Caro lina Industrial Commission, and the. excep tions to the findings of fact, .conclusions of law. and awarcLof the. Commission, after hearing' argument'of .counsel -for plaintiffs `To the hypothetical question he "said: and defendants, the Cfourt'overrules.the ex "Didn't play any part". ' ' ceptions of .the defendants and affirms the The "X-ray report is what he went by. On cross-examination: "Q. So the asbestosis in those cases where they died-- in what cases then could asbestosis be a proximate cause of a disease causing the death of the patient? A. Well, I don't know whether you'd call it a disease, most asbestotics die from a progressive heart failure on account of tremendous amount of fibrosis in the lungs." findings of. fact, conclusions of law, and award of the North Carolina Industrial Commission. This 21st day of 'October, 1939. A. Hall Johnston, Judge Presiding." The defendants excepted and assigned error to the Judgment as signed and ap pealed to the Supreme Court. The ex ception and assignment of error, and other necessary facts for the determination of this cause, will be set forth in the record. Diagnosis: His lungs were examined by Dr. J. W. Miller, Pathologist, Labora tory of Industrial Hygiene, Office of In dustrial Hygiene & Sanitation, U.S. Public Health Service. His diagnosis was as fol lows: "Pneumonia, lobar, right upper and middle lobes; Asbestosis, early," etc. The hearing Commissioner found: "The deceased did not suffer an injury by acci dent arising out of and in the course of James L. DeLaney, of Charlotte, for plaintiffs. W. C. Ginter and J. F. Flowers, both of Charlotte, for defendants. CLARKSON, Justice. We do not think that the exception and assignment of error made by defendants to the judgment as signed by the Court be low can be sustained. Asbestosis cases ig jn his death. ' He pational 'disease deoftbe compensation caused or ttiNK death or the he died," and award al was taken to the h found: "The Full arefui study of the rders that the Findons of Law and the ,'ommissioner, wheredenied, be vacated lieu thereof the folFact, Conclusion of bstituted." The Full found many "Findn the evidence made w" and held "Theression concludes as a Section 50% of the it this death case is ward was made for de numerous excep- s&m of error and appealurt. The Court below ig judgment: "This ; heard at the October p the Superior Court \aty, and being- heard % Hall Johnston, upon-; fc'roin the North Caro-'! ssio^rad the.excgg^cg f fa^Bmclusiopsoifi " : COTHnission, ..after ounsel-for plaint|fef rtoverrules,Jhe e?|r? nts and affirms/flip unions of law, Carolina -Indus; l-sl1 day-of 'October/ >nyjudge Presiding Jcepted and J as?1 Bie Court. of-error, and |he ^determination^: forth, in-the. reed' Charlqtte/iJ Flowers, both! it the e&cepfibn uhrby defeat d* by- the Cc Asbestosis' ;.e BLASSINGAME v. SOUTHERN ASBESTOS GO. 7 S.E.2d 47S N.C. JJS3 have been before this Court heretofore. normal labor in the last occupation in McNeeley v. Carolina Asbestos Co., 1934, which remuneratively employed," etc. The 206 N.C. 568, 174 S.E. 509; Swink v. Act provided money through the Industrial Carolina Asbestos Co., 210 N.C. 303, 186 Commission for medical and engineering S.E. 258. These cases were prior to the studies, examinations, etc. The United Amendment of 1935. States Public Health Service supplemented The General Assembly of North Caro lina, at its Regular Session of 1935, passed a comprehensive Act (Chapter 123) in ref erence to occupational diseases, amending these funds through the North Carolina State Board of Health. As a result the Division of Industrial Hygiene was estab lished in North Carolina. the Workmen's Compensation Act, Public The Act also provides for "Advisory Laws, 1929, Chapter 120, "And To Provide Medical Committee": "(m) Except as For Securing The Payment Of Compensa herein otherwise provided, ir case of dis tion In Certain Cases Of Occupational Dis ablement or death from silicosis and/or ease." The pertinent parts--Chapter 123-- asbestosis, compensation shall be payable "* * * Section 50%. (a) The disable in accordance with the provisions of the ment or death of an employee resulting North Carolina Workmen's Compensation from an occupational disease described in Act. * * * paragraph (b) of this section shall be treat ed as the happening of an injury by acci dent within the meaning of the North Caro lina 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 here inafter otherwise provided. The word `accident/ as used in the Workmen's ,Com-r pensation Act, shall not be construed to mean a series-of events in employment, of a similar or like nature, occurring regular ly, continuously or at frequent intervals in the course of .such employment, over ex tended periods of time, whe. ther such events may or may not be attributable to fault_of "(o) Unless written notice of the first distinct manifestation of an occupational disease shall be given to the employer in whose employment* the employee, waslast _ injuriously exposed to the hazards -ofsuch disease or., to . the Industrial - .Commission - 7$itfcin thirty.(30) days aftem.snch: manj?. festation, and, in. case of. deathj.unjesajalfq written notice-of such death; ^allbeigiygg by the beneficiary hereunder to dheenjployer or the. Industrial Commisri^tfj^j^^ ninety (90) days -after 'occot^gp^^-^ unless .claim for -disability apd/orydedth ., shall he made -within one- (-l)-:year?a|ber the disablement or. .death, respectiyriy,;-;all - . righfe^0 Compensation the employer, and disease..aitrib.utable to death*ifrom,'&" dccupatfoiSf^dKrelSe^^pfi't such causesTshall be' coffiperisabje; only if heHorever culminating'^ an occupational disease men4ti.oneid;i m.t and *com. p e*nws7a-sbl'e,.u. nd, er<. t,vh>i-s 'a mr vjumuuaaxuu ' rut u.a \ ' ' v" Act: Provided/however, no cbffipensation fafedy represented ^-ffimself pifwnting/as not having-previouslybeen. disabled-or--laid off* because- df: asbestosis/or- sifiedsisi/' "(b) TlK*olfbyifing;Ldise^ses:^n^' cbndr- tions only shall he "deemed' to be occupa tional diseases within the meaning of this Act: * * *. L ?~' Asbestosis. "25. silicosis- .`.v .. the :Standai'd Mineral X there^^^aSdlagnosisrQi'riffiesfb*si&``yE Ji asbestosis Tra$'-'ih'ei5*nfGSiSV; "- " ?-> ! coming actually .incapacitated, hecafise-,of Easonf^tX-tay diagnosis, .'h&ddd' such occupational disease^ froipjpsrforming .exnwaidns.Jammy1936, pad `-fchriMi : ihe^mdiiskiaT coinmissioii wlthm cine-year after the-accident and if^death-results from the accident, unless,.a found.*' vTfiat {&"!& claim- be filed with the commission within .^J^?&4^S^r:tfiat?; ^fer'hiisbaiad,; Jfc S. oneyear thereafter/' Thissectioh, like the - -Blassmja^i^'''&d; asbestoSia-.'soauf time Amendment of 1935,- says, similarfo the old ; . S^i^f'iiie^atopsy1 reportfited. May'10, Act, "shall" be. forever barred".;. " ,,vV--j.voy: '--l^^d, ilritTMin,,o^.t--ice and cImmjE&r compdasa- The claim*"was filed within two weeks 'iffipo|mK-ww4-ei:see'm'tnaaddee""QQUUt Julyjr~j$t?;;.1937, anddffiled after date:'.of letter of Dr. Easbm trans- boraywitfavthe defendant employer and pie jfiittfng'Hs fepdr^ and .the autopsy report . B^^^a^^kwmoissjbn'1937,(or of the United States-Public Health Serv- ./ requir^(-lh-?Section'S03^ fee t Ife fewart'-of"Ifthonia; "Ga. The - . , f^/j?:/^OctmpaibnM Tfe&i^ A<dy.rfiil:;. v(jra&issioh;ha^- fouhd: that* the:wi(fi)w first '. * bhidtBg ,, $ui9r shathejrfiusband: "bad- asbestosis soifler- * - C^Jt^-4^jfe3^'w'as"hnE:;A5ch*sir.anien3ijihef' lime after/May '-w^s-'-ffip . 3^i&en^Gblnpeh^PtHi5.-^a^^Chhpt|r ( dafe/of the autbpsy report of the United BfateS/PubK^S^ith'Semcey- ;that' notice ; - la^ad^:'rf^es^4aws;fn:%pifirct!fief^;' nhdcIam^s|aS-maQd.rJt4y 'Igr lSS^'hnd fil- , 7- ia'7My2d39372-''ThuSity?ill.be seen/that Ifc-Was huin^lyiffin5ossiBle1fdr;*tBe:-\Mdow ^m^ibi^^^^ed'dnipa^,matead? y>-6^>. . fqiMve^ldybShbPce-bf-'sach:-death: (death ' % "A "iesi^in^Sffir.-iaSajiceis) wiQiin ninety =' f' :\ days after tfie. death'.1' To construe this sec tioncas^coSended by thb defendants would .; .'../ ivith^th^cfir^mal acVfo Which-they relate-; be. to deny thej benefits conferred by the -, fis^'consffihtingy onerfawif %>Tbe; old* fdw Act in this and all similar cases; The con : shduld^be'cofisidered^ffie evils arising-mt text of the 'Compensation Act does not def fftpand the remedy -pfovided ,y' tfi favor such a strained of technical construc tunehthhents-adopted,rwhidP shall1best'rbi tion. The cause of deceased's death could press the "evils and advance the'remedy. only be ascertained by autopsy, as above set' 36 Cyc/1164, and cases cited." State v. forth, and notice was given within ninety Kelly, 186 N.C. 365, 372,119 S.E. 755. days after" discovery and" action brought within one year. The-,following proyisions were then,In existence, in which there is no conflictr In Johnson v. Hosiery Co., 199'N.C. 38, 40, 153 S.E. 591, 593, this Court said: "It Section 8081 (dd), .in part*. "Every in is generally held by the courts that the jured employee or his representative shall various compensation acts of the union immediately on the occurrence of an acci should be liberally construed to the end that dent, or as soon thereafter as practicable, the benefits thereof should not be denied up give or cause to be given to the employee a on technical, narrow, and strict interpreta written notice of the accident * * * tion." We see nothing prejudicial to de unless it can be shown that the employer, his agent or representative, had 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; but no compensation shall be payable unless such written notice is given within thirty days after the occur rence of the accident or death, unless rea sonable 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." fendants. In II Schneider, Workmen's Compensa tion Law (2d Ed.) part Sec. 554, at pp. 2002, 2003, 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 author ities). Courts cannot demand the same pre Section 8081(ff): cision in the finding of commission as other "(a) The right to compensation under wise might be if the members were required this article shall be forever barred unless to be learned in the law." I/TV" Schneider,-'' - Law; (suppleml ` lUndoubtedl}| : the commissionf Phot dear, leave the r<| |pmd award in doubt, I / for any -other reascl 37. commission to modifl j/flitional findings, ins | |g" the- appellate court |Ffyflpch are not incoi I reached, lo.,not corn jpmg all disputed qu 7* ^ustmecessarfly hav ^todnake and support jfefeliBrobst v. Haid, j #62 &W-2d 869,qua: Sy/Stf.Louis Basket pfS2.Ss?r;2a 501/' L: There is no eyrd< sion found that She .prejudicial to the C-dbes not provide th ployer is a conditio , E. H- Clement Co., 797),-but it does pr / not made within on "shall be forever.b . does not apply to tf a reasonable constseems to have bee The Commission fc the notice "within See 50%(o), supr red, what about f intent of the stati and circumstances contemplated that claim without beir one, and this w; after the autopsy v. Ins. Co., 199 N In State v. H 410, 186 S.E. 47 Court says: "TJ tion is to determ making body. 1 gives life to a 1heart of a statu lawmaking body. Co. v. Hodd. Co 601; State v. E S.E. 960. In t Kent: `In the intention of the the literal sense and intention letter. When t' intention is to I istrial commisc accident, and cjgAt, unless a within section, like the milar to the old ed." :hin two weeks Easom trans autopsy report Health Serv- tonia, Ga. The the widow first asbestosis somewhich was the of the United ce; that notice 9, 1937, and fil,'ill be seen that for the widow ch death (death within ninety '4jifa construe this secdefendants would onierred by the cases. The con- v Act does ntifc-j hnical constra-:\^`-. id's death doiSdY't^sir isy, as abovesefc&'iYy n within action broughtJ!t5` ft9:N,C.I.3^|S yUU,L, s.. m*dj;-_-.'`Wj|j| courtst s of the tmioMY0 acd to the end d not be denigdjuj||| strict .intprpr prejudicial to -4 .' Irkmen's Comp Irt Sec. 554, at i ^ " `The courts ' ndings of fact, md; lissioner, when the face, even though' i error.' `The m j to the effect tha. w of the evidence rectly or indirectly,' Jie findings made Lley must be regards I a wealth of autfe nd the samfej ' commission ash; [mbers were r BLASSINGAME v. SOUTHERN ASBESTOS CO. 7 S.E.2d 478 N.O. 485 In IV Schneider, Workmen's Compensa from the occasion and necessity of the law, tion Law (supplement), page 593, it is from the mischief felt and the remedy in said: `"Undoubtedly, if any party feels view, and the intention is to be taken or that the commission's findings of fact are presumed according to what is consonant not clear, leave the reason for its conclusion with reason and good discretion.' I Kent and award in doubt, or should be amplified Com. 461." for any other reason, he should ask the commission to modify them by making ad ditional 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 concern ing 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, Aug. 1933, 333 Mo. 390, 62 S.W.2d 869, quashing certiorari Probst v. St. Louis Basket & Box Co., Mo.App., 52 S.W.2d 501." There is no evidence that the Commis sion found that the lack of the notice was prejudicial to the employer. The statute does not provide that the notice to the em ployer is a condition precedent (Wilson v. E. H. Clement Co., 207 N.C. 541, 177 S.E. 797), 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 ninety days, and from In Cooley Blackstone, Intro. Sec. 2, page 53, we find: "Intent as expressed. The fairest and most rational method to inter pret the will of the legislator is by explor ing his intentions 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 subjectmatter, 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 under stood, we must a little deviate from the re ceived sense of them. Therefore the Bol- ognian law, mentioned by Puffendorf, which enacted `that whoever drew blood in the streets should be punished with the ut most 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." .- a reasonable construction of the statute it The Industrial Commission found, .among seems to have been intentionally omitted. other facts, the following: "That the im The Commission found that the widow filed mediate cause of the death of the deceased the notice "within 90 days" as required by was- pneumonia superimposed upon- asbes Sec. 50% (o), supra. If the widow is bar tosis; that die degree of abestosis with., red, what about the minor? .Taking the which the=deceased was suffering priortb intent of the statute, that under the facts contracting pneumonia had the-effectOflow* and circumstances of this case it was never erinjgInk resistance to the pneumonia.germ : contemplated that the widow should make wluch/ acco'rdin'g to medical SmimfefefTs-fever claim without being able to .make a truthful pfesentun'difelhuman -body;4f^Sty0e:ge0. one, and this was an''impossibility until eral tbn&ti,Sii?Qf the deceased^tpffic$^iSjf after the autopsy. By analogy see Nelson v. Ins. Co.,199 N.C. 443,. 154;S.Et752. In .State' v. .Humphries, 406,' 410, 18&.S.EV473, 47, the Court says: "The object of ailinterpreta tion is to. determine the intent df the law making body. Intent, is; the. .spirit which gives life to a legislative enactment The heart of a statute is the intention of the su^%wbredPesistamce .dr hSKtiti^d-iwanl off^fi^nionTaYyas;'the: ;incitjhg^rY-^ri??&i' mgfcli^Sis^jdfjibe ' fdtat `deyelgp&e^Jdj' ^fe^oh&*|td^^fh of theidec^feif^wms;,. |irMtma:tely|'Gaused -by; the de^dse<iwM|fe.'w'as:prdduce4;|^d;|&r^g;^ aljQjjt,dry-V^eakehed Conditione^mfjQ^iN ,, ed-resistanbeSdufe ` to' asbestosSJwitKiWhicfT the,,deceased\was>and had'Beea;.-stffering lawmaking body. Branch Banking & Trust fo;r-some time prior to-^he'jt^UdjhfejY??, Co. v. Hodd, Com r, 206 N.G 268, 173 S:E. I^cken- wi^Shetimonia. '3*^%f Tbkt 601; State v. Earnhardt, 170 N.C 725, 86 die widowYfirstJaiew that hafhiis^bldi'W* SJE. 960. In the language of Chancellor S. .BlassifigameThad asbestoriS, -spmfe . time Kent: Tn the^gxposition of a statute the after the. autopsy report was filed May lOth, intention of the law-maker wilLprevail over 1937; -that notice and claim for compensa the literal sense of the terms* and its reason tion"were made out July 19,1937, and'filed and intention, will prevail oyer'the strict both .with:the defendant employer Snd the letter. When the words are not explicit the Industrial'CQfnmission Qn juiy 20, :l!^,:or intention is to be coHected from.'the context. mtifctinjlChdays, asreqmred'by ticket SM', >. 'chiidjsi&thdperfbnna.nce' qf fMs dutyrto his' etHplbyer,. in am industrydraught with e&eptS^^iid! a&tgpbeai^f dangerjiwas. weakened by tint inhaling of absestos 'dust, and died- from- its effects. His Tungs.--- were, practically closed by fgronhdidasrappearance*^. - . ' None'bf The contentions of the defend- tf|kl|arisdSS ants'eanrbe' sustained. There was sufficient CpmpCfentQ'eividence for the Commission to find? tbd-fasjts^ujion^whichf they found de.-fend^tbTlalfe. .iK'has-been said repeated- 1yh^itfSTtbat|*thb; ffnditigs of fact ar-e -bind - >'v~ ~ 3?- . S^yse^Sppbtrbr m law..-The judgment . 'Is afSrmed *- ^ - ' "" " 1 '* -. STA^iW^^sxd WINSOME, cdkc'o&-'&diis^rafigh]pihiOn.' *>" gj&sj&rJff'->-.;{ _~r c. i>- ->:.SEAIELE>->J)f'Ac)nGurring;' ,r-&-M*S^5~,< ' '-*/SEA526Ldi,Jhstico"(bonciirring). f>^^fe^^l%,!^Eo6fifis5 <jfe%efaexafc^Jmdsife ' " Since'it; !^ the duty of the court below, vtrPtuinltufe and^alscf-tSfr^eburt/fb sbstaura finding by tfeIndustrial''Commission, when there.is any evidence to support it, I do not see why sarfeSQS ,,p.S. 1?7;, 59, S.t we shotdd-argue farther whether the de &!$!? There was.' firc^pir, ceased came to his death by reason of as- slaptial.|yi&ea.cel;l ' ' ' `,'1'*,,'' ''. bestosi's, or why we` should pick out the ,-,.^e;ii3!p(itiiefical,9uestions we thinjf-pjrop-f less favorable testimony of one expert as et)UC,der.,-.oun decisions,. A sisxt$larr)hxj against several others who testified plainly potheticalquestion was" admitted, in Shaw,.?, that he did, I^ILC., 222,, m:iS.E;;|25 ~ Pneumonia is indeed an.infectious dis ^ta^sl)jefprg^ Dje^n, J.) and .approve?!, % ease, but we are made to understand that "in .that case the question was just as the vulture swoops upon his dis the,cause of the*death of two men in.the abled prey while yet there may be life, the cabin of a boat It was alleged that the latent germs of pneumonia are ready to boat was operated by a gasoline engine take over the lung area when resistance has which was old, worn out and defective and been destroyed. Pneumonia is such a close would blow gas fumes out of the engine in incident to lung injuries, and indeed to oth to the cabin. The weather was cold and the er injuries, that it is sometimes apparently windows closed The hypothetical question regarded as merely the hand that opens the was answered: "Gas poisoning, monoxide gate for the final flight. poisoning" (carbon monoxide gas). Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176,. 162 S.E. 223; Xeith v. Gregg, 210 N. C. 802, 807, 188 S.E. 849. In this case we Following McNeeley v. Carolina As bestos Co., 206 N.C. 568, 174 S.E. 509, when silicosis, an occupational disease, was treated as an accident already within the think the hypothetical questions assume scope of the then existing Workmen's Com facts which the evidence directly, fairly and pensation Act, and as such compensable, reasonably tends to establish, and were the Legislature of 1935 added to the list of competent The probative force was for things compensable under that Act a large the jury! number of occupational diseases, including The facts were fully sufficient to justify asbestosis. We may assume that in part, the Industrial Commission's finding of fact at least, this addition to the statute was that- the proximate cause of death was made for the protection of industry, asbestosis. The facts are distressing--a through the regulation of the conditions young man, a bread-winner with a wife and upon which compensation might be made BLASKINGAMB v. SOUTHBHN ASBESTOS CO; 7S.B.2d* .N. e. M7 for occupational diseases. If there is ob by asbestosis, or an award made therefor, servable in the statute the suggestion of the employer has notice that such a condi a policy supposed to protect the industry tion exists. If that has not occurred, then against imposition, we are not required to he is entitled to a notice of the, condition go beyond the terms in which it is ex within thirty days after its manifestation, pressed. Whether the employer has the and notice must be given within ninety "edge" of advantage in these positions is a days after the death. It is, therefore, first matter for the Legislature and not for us, and last, a question of notice to the em but it is our duty to approach this case with ployer, and it was not intended.that in the some degree of liberality toward the labor absence of such a written police within employed in the industry, since the rule is thirty days after the manifestation of the universally accepted that statutes like the asbestosis condition it should put the claim one under consideration are to be liberally ant against the alternative bar of his claim, construed in favor of the employee. While upon the ground that death had not fol this does not permit us to set aside any rule lowed continuous disability. What we established by the Legislature consistent must deal with,--and I see no disagreement with constitutional limitations, it neverthe as to this,--is the question of notice which less strongly enjoins upon us the duty of the statute requires to be given within thir resolving fifty-fifty doubts in favor of com ty days after the distinct manifestation of pensation. asbestosis, and the ninety- day notice after In the present instance we are dealing the death. ` with what I should consider a very harsh : Similar provisions in insurance-policies, provision of the law, operating, more for as drastic if literally construed, have been arbitrary exclusion, of asbestDsis victims relieved against upon the "accepted theory than for-the reasonable protection of em that the law does not intend an unreason ployers against imposition, Unless its .terms able-requirement which" would, defeat ijus- may be rationally explained. ....., tice between the parties;";especially when Here aretfre conditions'whieh^haveheen the."-party charged with liability, dras- not suggested as standmgin tfte way of com beep prejudiced by want .of; notice, -iNelson pensation r'IC&apter I23,v!Public Laws of y^Jnsutaace Co.,, 19&"-N^^4|3,>.yl54riSE; 1935, " SOy/fo), 'Mich!e?s^Cbde, of 1935; , gorham Section' '8082;(15) requires"a - written ;524;2Q0.S,E. .5Woodell v.rinsuramcejCol" notice it& airemplpyer wjfhfh-tldrty' days 399 S.E. 719;, v^JJgoodji^jnr afteira cKsHnct -m^ieSaffoa~'b- art occu TOlKfej3a.486.N.C.-^t5,4^S^^t|,>S61.. y. pational diseasepand ;in -case'of death, also, ^1^552; Ball v.^Lsa^nc|^itpi.,.^^-.. a written-notice of4uchsddafii;wiffim '-nia'e^ IS-Sr ?fe-i72;S;E. <878. ' ty daysrafterth'e- bfcctaxerice^ Wjfliibpedal reference :^sbfesibSsg,;feec1S(jnL50%; subsection ,i{g) .C^ide'fofjiI93S,tiSecfipEiQ^;|^.- ;pro& 'widest enloyeifdid3lm^%b3S)ld^r' any^ompen^tiohi^fe'liasbe^B^Si^ilicQsis soft f(^<t^q^i4i^i'^g^^^plejmenfpsbr aea^-<tSulte^hmfS^5^Ki^i;ai6:ec-jthe ....... . . leVeiKdSbcSiHA-^b-^::.;-. w-iv-irf" last exposure.to suckflSe9.seiQ^4n:case5-d death, uolessdeatfa follows, continuous, dis ability. t .herein, been'paid txiwardecfpir.llfipfy ^jpupaife ^6atarASifittPtiQn-:pfleypii^^^|^a^d: as^ereinaiter prbgijdei tand seyen yeaps`^ftep. spc^Jlas| ,I|^ppufe? rij mflfa'm&mt&kMfig. vp ; Wfc' have heretalteihaHve cohditioxts- aL- fc^^bei5fesiK3Jr;i-waS'.?4i^PP&i'fe3^; isy V _"' feciitrg compensation-in case.:of.>deartlK sdher* tmm^sable.;diseps,e<i^^^?r^i. life * first, if death foUows'cChtmrions' disahility -fenmed'ofjibiS: after-'fts^lp|i^*-i2uidiAe" for which compensation 'has-been- paid of awarded-; - and, second, -thnely -clahnimade, slife'^ed^et:clamwithiii^&r}in^?tid3^- ?' ashereinafter prcvidetLiDbsricmsly,:if payT pfberjil: was .ifi'cumbentSPI??.3^^sorfjpgggi. ,:' anehtfhasJb^n.inadeifarSt dis^3ify caused flMs^-thejreasoningr-fi.ppB^tfitti|fi5^^af- i', - `-Ms life- apparent deceased, was.ihdicatedby fe#'waS&riiat':so tmperativd. lie rHe^-wlE^ accompanied his difficult is&td;. fpp^SSs^-cotAaetidatile where.our breathing; 'i Thus, with his lungs torn- by cou^atuitiSi^iSireijaired to he liberal? *~ ' asbestos particles, which it" was impossible Itfiid e^j&fias the defendant heen prej- for him toiibsorb or-cough'up,, and filled notice. tafiess, indeed, with, fibrous-instead .of cell tissue, he left upon which itrelied his employment and went to-Georgia, where ^feihef^h^tt'lound gboc The fact that the condition; continued,--without the ab TOBrj&Si'^^.hffliiSe^ ivith abhestosiaf and normal : temperature which would indicate &^`3[aa^K^^$fM *itr&d affected'his that pneumonia*had supervened, for a.peri od of time. ' Then pneumonia ensued, which -cohM*,n6tfhe 5uii- the expert-witnesses stated was' the result '^'^^^^i^^^sMdeld^prbduced^ahd, of the-asbestosis.. When the time came to Vv*-Y. inevi ^^^^S7fi?oinyearsi.pf ihiialatidn fight thiSjhe-was-already halLdrowned with, ,pByrf34^,''ahi:^fHe solidimatteiti; ,: -^ - - .;. r . . ..... ._. ., j^issoe^iji^tfiefilKiig-ap * But even- if'the man worked down to the last moment, :thxs is not conclusive- as to' his ^^MStT>eS53?i;;:^Kefhelr')hh disabiEtyi"-' ;The- distinction 15- clearly :^^^1"itmaT'tomiS5ded^ht,: bfougKt.MSWtFiriFtfie^evidence of- fhe-expierts ___ iSs&&6u 85St^l3^. '"*0 testified' that he was disabled and ' b^a;^^%^^i^kdm`g.by.^^the'-Commission should not; have been at-work. !-.^^^:;S'Qh^p^'^is^.np$f';p5jejiidiCedv by "' Men. are-constituted differently. One ftl^easi^C^jiot may belncEnedv-to quit work; and do soK ,.'^|3^^^^^^quifetlE4fiWes;.\the wheat his- physical powers are attacked by J^jnKsiS^6^i6^^.'dosfaKlfidfeijfs:'5^ disease or. injury, and consider himself ;rfi^j^f^^^e^fiSefi;and&adjudgihg^.tbe' totally - disabled or disabled from normal eiainr j^ii^t&smpensable-^thereunderj may employment. Conscientious experts pass4bes defem#`tcpikve'.&tind^'that a .want of ing on his, case will agree with him. An- jaofSctEis.n^rgr.ejudiaal to theemployer. other, who has suffered greater impair- the deceas- ment, will desperately arise to the emerg.en- edwa^djsaHb^ffom normal labor has been cy under the pressure of what is euphonequestionedJ-^-jittention has been called to ously called "economic necessity", and the fact thathe did labor up to the time he which often means the necessity of fighting left for itth'onia;-Ca., as conclusive on the off starvation from the hungry mouths of point. The" expert evidence in this' case his dependents, and will fight his handicap clearly indicates:-that he was disabled from and carry on with a determination, intensity normal labor; * notwithstanding the fact and courage that will not suffer abatement that he did actually labor, and notwith until his dead hands fall from the loom. standing the-fact that he gave no notice of It is not at all necessary, however, to go the condition, himself being unaware of it. into that matter, since we are here dealing There is no question here of total disability. with the question of notice, and on this Whether his labor was actually normal, question I am impelled to agree with the we may judge from the circumstances. findings of the full Commission and of the For a long period of time the deceased Superior Court, and, therefore, concur in had violent paroxysms of coughing during the result reached here. the mornings. The paroxysms were so vi olent as to force the blood into the vesicles BARNHILL, Justice (dissenting). of his skin until his face became violently A careful examination of the record dis red. The absence of oxygenation was ap closes that all of the evidence tending to parent from the fact that at such times his show that the deceased, prior to his death, nails became black. Here was the most suffered from asbestosis is hearsay, being violent attempt of nature to expel not only largely based on an unsworn unidentified the grinding asbestos particles with which report by the United States Public Health his lungs were subsequently found to be Service. All of the evidence tends to show impregnated, but also the fibrous scar tis that the death of the deceased was caused sue which had taken the place of the open by pneumonia, a germ disease or infection, air cells, necessary to his existence by the and that the only effect that asbestosis intake of air and oxygen. The condition of could have had in contributing to his death his lungs, although the cause of it was not lies in the fact that it had a tendency to # as indicated by cd his difficult liings torn by | impossible up, and filled tissue, he left Georgia, where without the abwould indicate ned, for a periensued, which was the result time came to drowned with d down to the lusive as to his n is clearly of the experts disabled and ~ differently. One work, and do so, f are attacked consider from normal >_ , experts pass^-yJF with him. greater impa^r-`Sj5 to the emergay/$|]y what is euphonfe%|| necessity", essity of fighting^ |'T\y mouths:? |:jhis handic^;'1 amation, intensity suffer abatement!, from the IOQmg,-fiiS | -.ary, however,-. tQij [ we are here dealif (notice, and'onSU d to agree wifihfif mmission and.of'l therefore, cond|J|l re (dissenting), Iion of the record ^ evidence fending! I, prior to his def | -is is hearsay, Tb`et^ ! msworn unxdenfifi| J States Public '" Iviaence tends to* I deceased was . disease or infect (rffect that asbe tributing to his? it had a tended? o BLASSINGAME v. SOUTHERN ASBESTOS CO. 1 S.B.2S 478 N.G 489 lower his resistance. There is no evidence proximate cause of death. The claimants that pneumonia was not sufficiently virulent have no right to compensation under ex to have caused death irrespective of the ex press terms of the statute. istence of asbestosis. Pneumonia being an infectious disease reference might be had to the medical reports relied on in which it is made to appear that he was suffering Ch. 123, P.L.193S, amends the Work men's Compensation Act so as to add sec. 50%, providing for the payment of compen sation in certain cases of occupational dis both from infected tonsils and pyorrhea-- eases. As thus amended sec. 50% (g) pro conditions which are resistance reducing vides that "an employer shall not be liable and provide a fruitful field for the large- for any compensation for asbestosis * * * ment of pneumonia germs. And the medi unless disablement or death results within cal testimony tends to show that lobar three years after the last exposure to such pneumonia (the cause of the death of the disease, or, in case of death, unless death deceased) is more prevalent in strong, ap follows continuous, disability from such dis parently healthy, normal individuals than in any other type; that pneumonia patients die not from the condition of the lungs but from the toxemia the presence of bacteria ease, commencing within the period of three years limited herein, and for which compensation has been paid or awarded or timely claim made as hereinafter provided produces; and that the disease is no more and results within seven years after such prevalent in cases of asbestosis than it is last exposure." in other patients. Under this section the claimant must Much could be said as to these aspects of prove that the disablement or death result the evidence which make it appear that the ed -within three years after the last ex presence of asbestosis was incidental and posure to such disease unless it is shown that it could not be said that it was the effi- that compensation was paid or awarded or cient proximate cause of his death as indi- timely claim made, as . provided in the Act cated by the testimony of- Dr- Easom, chair- prior to death. In that event it is- sufficient man of the Advisory Medical. Committee to -show that the -death, resulted within appointed under, the Occupational .-Disease seven years after the last-exposure." HowLaw and Director of the Industrial Hy- ever, the Act expressly provides .that there ` giene Division of the Board of Health of shall be no liability for thepayment of comthe Industrial Commission,.-us followsj "I pensation in.-either.eventjgffie$s death-fol- think it is very probable that the pneumonia- lows -continuous disablement,from,such .dis-. might have been fatal without thetasbestq- epeiOoi^en<^g. withhj,dire;yearA after,, sis, he might have-diedllof,pneump3?ia.everir .exposure, y Proof.thereods axtm-.. without the .asJjestosis.jAthet&ifevno: tJ|g?n;prsged^ti;p* recpvfflpfjsK,is-%: ptor,.- the world of proving fhatrthis-man'wouldT vfsitmkfgrinotice,, ioBBL have or woffid^t^tye,^d^^opt:.hqv- , . disablement tor"i ing the-ashest^is-tjj ion that pneumoniips-na^oiw^j^^^#nJ'SC^t(^^n":resp^p-^b|^iS|:^tQSig4: ^ V;;- cases o asbes&sjs' ^.ev^pl^ec^mg^tt^yim^li;! tients . * .-^.,mr^y.yK^igi^m4h%^^c5pjtnfete4-ihecause?'i^fc^p^^ccap^bha|5;?;^ . bestosis played, ho ^sigiy'ficaat hart-dn ..bas^d^ase, from death * *,`-^most n rr'*'*; ~ die, from ffie^o^emia-j-froni'.^the jbacfer^:.-|^^o^ed.'LT.-:C;-r r that is presence piJteaBte&im Mmf'ai.25yi37;afewid^li^3ig.,5i one way or ihptother-Omth.ehox?1^?' ^^sr'mrit:wd&fQr the'ipuipbseifetaKuigSipleafe.-'r'- Murphy, a member.-of the .Jpdusteal.O^ ^ t0 `Georgia. Befpre&u^g mission Admory Mjeffical Committed Issfjb fied to like effect.. ,,-y, ... , u.--* edd^-.pneumonia froin.-5fi3i^|^"^i^IApril Dr. Steward whbr attended the! deceased tfitSXSg; Hewas not,fihoi.*ana,liadrnever during his illness, ffanHy stated:- "Tdon't bear-dmabied-droto as'bestt>s^;as{dehneeLdtt > 'v -A'}*-' vji- know w- h-at-asb.esto.sis. is. ." -His^--ppimoh-and .the,..s"ta*tute.* Th- e cqn-mu&i^i-.Joimd- as- , d- i were incompetent. /But as I view &e rrecc^d-dt^fdlgw.jhontinuons dfeabil^ fronvgacli dis/ ics iumnnnepcrepswsairrvy.-ftrot debate thh#e-qnue^csHtionrnt Aiflffi keakspe ^ . for. .which-, compensation. -. 7SJiiakitScr -- i - .-isii' "' ,A WILKINSON v. BOOMER 1 S.E.M 491 - NIC- sions the Legislature has elected to omit or to disregard positive provisions therein contained. I am unable to agree with the reasoning ers, as drainage districts'are political sub divisions of state. C.S.' 5312 et seql, as amended; f 5360, as amended by Pub.Laws 1921, c.7, 2; 5361. in the majority opinion or with that in the concurring opinion to the effect that we are dealing only with the question of notice. As I view it the failure to give the required notice is a secondary feature of the case. The plaintiffs have failed to establish the right to compensation in the first instance, irrespective of notice. The hearing Commissioner was correct in his conclusion that no compensation should be awarded. We should so hold and reverse the judgment below. 4, Counties <9=22, 194 Drains <=88 ' Municipal corporations =>559, 978(4), 981 Taxation <9=708(1) A county, municipality, or individual holder of certificate ' of sale of realty for taxes may foreclose lien of certificate under statute, but county or munieipaiity, such as drainage district, levying taxes or assess ments constituting lien on realty, may pro ceed under different statute to-enforce lien, by action in nature of mortgage foreclosure STACY, C. J., and WINBORNE, J,, suit, wherein court must order sale of real ty. C.S. 5312 et seq., as amended; concur in this opinion. ` 5360, 5361, 7990, 8010, 8024, 8037. {0 ^CTKUMkV$Y3TJ& '3 5. Mandamus <S=i 14, 119 .Taxation <9=572 . .^ ''A private 'iitizm has ofily such reme dies as are giverii&u -jjy statute,,to compel levy and cqHetdjonjof.fexesitb'ph^ diabt due 217N.C. 217 *f - WILiUNSON et ai. v. BOOMER et al. him,* white state, geehing;'to'VoileetCits'Jowm taxes^for igen&al "^hrpose^'d'f ,,governiiieht, has4 inherently M iaemedles, not yoltfiiiarily . '' ' ` -N&i!?. - v-T _ ` . , ' J * ;y." " i`-' ei&puntles-i&azf, 194C j Supreme 43ourt<of .North-Carolina. ? : ^Municipal ^eb^-28,1940.' > 7~'T' '1'4'9vO8.|I .4'. - Y X ..-a__3-.Lt .V..-. 7 ri -' ^ .' - ' " i. Drains <S=J8 .rvr~ *t'.' ,vf "-''J * A j>ol4er:^i^n^%r^ida^y,isiie.d d?y drainage-district, ^ng'-jax.-' isting- und^^ta^^^ca^qlfmainlBim^^on' against.lndis|an^jq'gs^;^lamiil^;'^^<*r to foreelose^ienJqiCjnflpaid'inlgsCTj^f^^ni^" made, tutder^iii^flly.statute Jfdr*; bonds of m't^^J&^SoS^sfa^lA. dr litical sUbdiVis^mSof JsEe^^>'lSn^frin^ .............. ... __ ......... . dS&g&ggC payment thereof ^rdvidedr&r'cbeeom&^n-ii'SjSgii atfsai stftuent part -Contract-withibondhblde^; -owiier4of-Kjtodv;M=0aialns^4jiB^^;^iii-;''4|v'< ' -r. V-1` X . .'.7 ..-V.'S.\v" 3- Drains 4ft8.; ccc.-.u. arrtasfrpis.* X`-~.vr>'CT- '-.' -y'r'S'm:-. ,3SE?T:|. ' Oti-'-f.: *?'4 The statutory:provisionS regarding fisstt: {fcj3ralh& 0^9f!f(fiSV$m3$3. .^.'4 ance of drainaga^dfstrict^honds andiieyy, tafe - -At ^rate^itdisftieti^tnprtjjf^aQ^fc^ipndi^v ~)r sessment land 'collection :of.assessments ^for comfcLndfiWsdnesa_trfjpisg|^?hofnf j/ payment .thereof, ias'^fflias^general 'xeme-, >a;land .therein;. -anS^T^4^i^blie.;di'a^g^4,'--. dies in effect-when: bonds are issued dr .en oiLrsmatilandsihirigmJn^ ^mgtcha^tsSg^fc;Y:, '* forcement of- Buch assessments, -hecamejpart in hamfe at contract' iktween ^lstrlet;and. hondholdi ' ''..Vii- t.-' ' - .-'-a-. ; ~ ;-- '-y&jm. <= -'S9P-1 ti*.,: i. ^ '14 **' ?rv- siiSaiii _ **HW'U WyMT*1^ Ttai&ffjmi dtSa^S.. S. M^^..U..i.s.fe?. " or(. , '5feyhis-or'its S-'&Ki? if; .r<f5?T''W~'^-: canduGtfmisIeadsthe- in|af^Jemployee or Z :I^y1a4nt^s1ia^e:&He'a4o; egita6EsljF&i' claimant reasonably to believe that notice cofaidMorisiiaridfefrrwia^ihfe. empld^or is3i- and/or'-claitn; has or have5 been waived,' - abfef<a'/compeisatiei6. Thbease'ls--ptemlyu And it* does>' not appear -that notice has ..v jox&vidC2^a -^Eieudei^as. oftfe-.statute* >r -i-.- :"- thus-been waived5 by the defendants". C:f lf'^WIietKr:|^sStteiStnctio&s,tip6ift&e right' *Sut.4if"ibrbe conceSetf "as the majority ulifrr *vr^r- L-.r -jarTTrs.,. vr?5 * a__ -------; ***"> * ^A^M^j.cuv.^wuuuuuig ao lv ^ t 'f6-'3eteimihe.'-*~THe' no&d^iififie'case at bar, then we must bear ,,' f E^isjSffirfeh^ ''wfifetr the- -statiitteih tdtesa^ hr rnihffthmrit is `there .provided that "no f,cS^:3?f;tifiMghikaHiS' Jilhguage' arid'-Tf^is *t!3F compensation shall be payable unless such ^ -------- - --- .-^l-'AKSa^h written! hdffde.'is' gjyeir witHiri thirty days aflbrj-S'e" ,0.<Sifrence' bf the7 accident or death, unless' reasonable`excuse is made to tfie: 'satisfacHou' of/the jfoj&strial Corm mission dorriot^iving such notice, arid the comiriissiofc is'satis'fied"*^^^ employer. has noirhedn. prejudiced thereby." ' If the cbiiiiiaritr^s&ek'-'to excuse the failure to give notice under the terms of this provi sion,- :th&- burden; is off them.- They--did not seek to .sor show./ Even- had they done so the commission has not- found that- such ' f&^Wr&&ezffetyz3ie& `also written- notice-5 facts appear to- its satisfaction as it is o^stichjii(ifithf;5fialf!,be b:iven';by the Efene- required to do before the want of notice -^^^^er^laidePftq fhe: -employer or the. becomes immaterial. Singleton v. Laundry - ninety >(90)- Co., 213= N.G 32,; 195 S.E. 34. As the day#%ff^''-'&ccufrerice:"' -Sec. 50%. (o).' Commission has not found "reasonable ' T-WO- separate1 'atfd-: distinct notices -are re excuse" to-. its satisfaction or that "the quired:- (J-J'-Notiefe of-the first manifesta- employer has.not been prejudiced thereby", tioiijof--the disease-prior' to the death of the failure to give notice is material even the cmpToyeSt'arid`'(2) written notice of under this section. sucht-deatH^-within ninety days after death- Furthermore, it is apparent from the occiirs.* The'provisions of the statute have record that' no effort- was made to sub nOt' hedn complied '-with 1 either as to the stantially comply with the provisions of notice prior- to death or the notice after 50% (r). death/; ' .. A careful reading of the pertinent stat The.Commission found that the claimants ute leads me to the conclusion that it made' out notice and claim for compensa clearly appears that the Legislature in tion July 19, 1937 and' filed such notice tended that there should be no compensa and claim with the employer and the tion paid for death from asbestosis unless Industrial Commission July 20, 1937, which the employee, during his lifetime, at least was more than ninety days after death recognized that he was suffering from occurred April 1, 1937. Therefore, the asbestosis and had made claim for, or the conclusion of the commission that such employer had voluntarily made payments notice was served within ninety days, as of, compensation; and, unless thirty days' required in section 50% (o), is not sup notice of the existence of asbestosis was ported by the record. given prior to death and notice of death . In this connection it is well to note that the provisions of' sec. 50% (o) dearly make the provisions -of sec. 22, ch. 120, P. L.1929, inapplicable, for it is provided that was served within ninety days thereafter, or waived as provided by the statute. If this be correct the claimants are not entitled to compensation. notice is deemed to have been waived; I am aware of and in full accord with (1) Where the employer or insurance car the rule of liberal interpretation when the rier voluntarily makes compensation pay Workmen's Compensation Act is under ments therefor; or (2) within the time consideration. However, this rule when above limited, has- actual knowledge. of followed to its fullest extent does no; the occurrence of the disease or of the require us to write into the statute provi- | ara' unable tc ___ Jfie iba|onty t p 'iMricurririg' opini ifarb dealing only ffe-.ifl&;I'Viewit the - notice:is'a-seco plaintiffs h ; .-righb to compen ~ irrespective of n 'v b'V*e' aI!r-i?ng-'*'.' ii p^OTl-'SSrccmcitfsic aWardt iiyeree.bhe j&dg ^'4^AYrc';: *; concur- in this o] . -y-' -r \F'~ ' fyrtwfe;- yi `^arw.C. 217 tSaj?* WILKINSON -hr - Supreme Co S i. Drains !8 * A .holder o drainage districi isting under stat against iudividui to foreclose lien made under aut payment of bon( amended. 2. Municipal eor| The legislntl bonds of munici] litieal suhdivisio payment thereof stitoent part of 3, Drains =I8 The statutoi ance of drainage sessment and c( payment thereof dies in effect wl foreement of su< of contract betv #