Stewart v. Duncan , 239 N.C. 640 ( 1954 )

80 S.E.2d 764 (1954) 239 N.C. 640

STEWART
v.
DUNCAN et al.

No. 233.

Supreme Court of North Carolina.

March 17, 1954.

Fouts & Watson, Burnsville, for plaintiff, appellee.

Williams & Williams, Asheville, for defendant, appellant.

Proctor & Dameron, Marion, for defendant, appellee.

BOBBITT, Justice.

In appealing from the hearing commissioner to the full Commission, and in appealing from the full Commission to the Superior Court, the appellant filed specific exceptions to a number of the findings of fact and conclusions of law and to the award. However, the appeal here is from the judgment of Judge Moore, no exceptions having been entered to his rulings as to particular findings of fact. In the absence of such exceptions, the appeal does not bring up for review the evidence upon which the findings of fact are based. The only question presented is whether the findings of fact are sufficient in law to support the judgment. Worsley v. S. & W. Rendering Co., N.C., 80 S.E.2d 467; Wyatt v. Sharp, N.C., 80 S.E.2d 762; Glace v. Throwing Co., N.C., 80 S.E.2d 759.

It has been pointed out that we regard it to be the better practice for the Superior Court Judge to rule seriatim on each of the specific exceptions of the appellant to the findings of fact, conclusions of law and award of the full Commission. However, when the Superior Court Judge affirms all such findings of fact and conclusions of law and the award, it is in effect a ruling on each and all such exceptions; and in such case the appellant is in no way precluded from filing specific exceptions to each ruling on which he wishes to base an assignment of error upon appeal to this court. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869. The procedure is fully explained by Chief Justice Barnhill in Worsley v. Rendering Co., supra.

The appellant, by brief and in oral argument, contends that he had no opportunity to file specific exceptions to the rulings of Judge Moore. There is nothing in the record before us that suggests that the appellant was precluded from doing so. A consideration of this contention would take us beyond the record and beyond the assignments of error. However, upon a careful review of the evidence we find that all of the findings of fact are amply supported by competent evidence and the appellant has suffered no harm on account of failure to comply with procedural requirements.

G.S. § 97-57 provides:

"In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.

"For the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as thirty working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious."

Any suggestion of comparative responsibility as between successive employers and their respective carriers, or as between successive carriers for the same employer, is dispelled by the plain language of the statute. The liability is upon the employer and carrier on the risk when the employee was "last injuriously exposed" to the hazards of silicosis as that expression is clearly defined in G.S. § 97-57. Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275; Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274. Under the findings of fact, this casts the liability upon the defendant R. H. Duncan, and upon the defendant American Casualty Company, its carrier.

The principal grievance of the appellant is that it was assigned this risk on 15 June, 1951; that the liability of Coal Operators Casualty Company terminated on that date; and that, while it is liable under the express terms of G.S. § 97-57, it is unfair to impose this liability upon it because the plaintiff was permitted to work after 21 July, 1951, when he was advised that he had silicosis. The contention is that the employment of the plaintiff by Duncan after 21 July, 1951, was in bad faith, in effect a scheme to make the loss fall upon appellant. Again, consideration of this contention would take us beyond the record and beyond the assignments of error. Suffice it to say, there was no finding of fact and no evidence supporting any contention of bad faith on the part of the employer. The evidence shows clearly that the claimant's work after 21 July, 1951, was in all respects the same as that he had performed prior thereto. In this connection, it should be noted that an employee cannot be forced to change his occupation or be removed therefrom even by order of the Industrial Commission except after hearing held after due notice. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797.

It is true that the employer or employer and carrier on the risk when the employee "was last injuriously exposed to the hazards of such disease" within the meaning of G.S. § 97-57 must bear the liability, even though the disease has been present and has progressed over a long period of time. This situation gave rise to the necessity for assigning risks by the Compensation Rating and Inspection Bureau. G.S. Ch. 97, Art. 2. Each company underwriting workmen's compensation insurance in this State must accept its share of these undesirable assigned risks whenever the Bureau finds that the risk is in good faith entitled to such coverage. A particular risk, standing alone, may seem to impose an unreasonable burden on the carrier to which it is assigned. However, the long range result would seem to be as equitable as under any system that can be devised.

It is noteworthy that the appellant was the insurance carrier for Duncan from 15 June, 1951 to 31 December, 1951. The coverage included all of Duncan's employees, not the plaintiff alone. It is also quite possible that another employee of Duncan, within a short period after 31 December, 1951, suffered disablement from silicosis under factual conditions such that the new carrier had to bear the liability.

The applicant also contends that, by reason of the finding of fact that the claimant is suffering from tuberculosis as well as from silicosis, the rate of payment specified in the award should be reduced one-sixth under the provisions of G.S. § 97-65. The Industrial Commission, after full consideration, declined to make such reduction; and we are of opinion that, under the language of this statute, this was a matter within its discretion.

It appearing that, upon application of the pertinent statutes to the findings of fact, the award in favor of plaintiff and against the defendants R. H. Duncan and American Casualty Company was fully justified, and finding no error of law in the rulings of the trial judge, the judgment of the Superior Court is

Affirmed.