Autrey v. Victor Mica Co.

67 S.E.2d 383 (1951)

234 N.C. 400

AUTREY v. VICTOR MICA CO. et al.

No. 236.

Supreme Court of North Carolina.

November 7, 1951.

*388 W. C. Berry, Bakersville, Warren H. Pritchard, Spruce Pine, for plaintiff-appellee.

Smathers & Meekins, Asheville, for defendants-appellants.

*389 WINBORNE, Justice.

Defendants, the appellants, state in their brief three questions as involved on this appeal, the first two of which call for express consideration,decisions on which are determinative of the third.

I. It is insisted that the court below erred (1) in overruling defendants' exception to the finding of fact, No. 6, by the Industrial Commission that plaintiff was first advised by competent medical authority that he had silicosis on or about 24 March, 1948, when Dr. Thomas wrote a letter to that effect, and (2) in overruling defendants' motion that the cause be remanded to the Industrial Commission for a specific finding whether plaintiff was advised by competent medical authority in 1940 that he was under disablement from silicosis.

It is urged that this finding involves mixed questions of law and fact, which are not supported by the evidence, and that hence the award based thereon cannot be upheld. It is pertinent here to note that the statute G.S. § 97-58(b) provides that "The time of notice of an occupational disease shall run from the date that the employee has been advised by competent medical authority that he has same".

In this connection it is contended that the record shows without contradiction that plaintiff was advised by Dr. Bittinger, in 1940, that he was under disablement from silicosis, and that, from the exhibits in the case and the medical reports, Dr. Bittinger was in the employment of the State of North Carolina, as Medical Director of the Western North Carolina Sanatorium for tuberculosis at Black Mountain, and, hence, it is assumed that the court will take judicial notice of the public record of the State showing the appointment and employment of Dr. Bittinger in such capacity.

However, granting that Dr. Bittinger be a "competent medical authority" within the purview of the statute, G.S. § 97-58(b), as contended by defendants, the finding of fact No. 6 is tantamount to a finding that Dr. Bittinger had not advised plaintiff that he had silicosis. And the evidence shown in the record, when taken in light most favorable to claimant, is sufficient to support the finding as made.

True, it is made to appear from the Sanatorium records that Dr. Bittinger wrote two letters (1) 18 June, 1940, referring to examination of 13 June, 1940, in which he said: "I believe that Mr. Autrey has now definite evidence of pneumoconiosis of the silicotic type, though I do not believe that it is very extensive as yet"; and (2) 30 October, 1940, to Dr. McDuffie, in which he said: "We also believe that he has some silicosis with quite a good deal of chronic bronchitis and slight amount of pneumonosis". Neither of these letters appears to be addressed to plaintiff.

On the other hand, plaintiff, testifying on direct examination, stated that when Dr. Thomas made report that he, the plaintiff, had silicosis, this was the first time he had been informed that he had silicosis; and that prior thereto he did not know nor had he been advised by any doctor that he had silicosis. And in respect to the claim filed by him against Tennessee Mineral Products Company, plaintiff testified: "Dr. Bittinger * * * said I might have some silicosis and he wanted me out of the plant * * * I had not been told by Dr. Bittinger that a man that was short of breath might have silicosis * * * He said I might have silicosis * * * He told me I might have some symptoms of silicosis and he said he thought I should come out of the plant and work on the outside."

This testimony is positive and undenied.

II. Defendants also insist that the court below erred in overruling defendants' exceptions to the conclusions of the Industrial Commission holding, generally and in substance, that plaintiff's claim was filed in apt time, and that plaintiff should recover notwithstanding the provisions of G.S. § 97-58(a).

The question here presented is resolved against the contention of defendants on the authority of the case of Duncan v. Carpenter & Phillips, 233 N.C. 422, 64 S.E.2d 410, 414.

In the Duncan case, opinion by Denny, J., it is said: "In our opinion, by enacting G.S. § 97-58, subsections (a), (b) and (c), the Legislature intended to authorize the filing of a (claim * * * for asbestosis, silicosis or lead poisoning where *390 disablement occurs within two years after the last exposure to such disease; and, although disablement may have existed from the time the employee quit work, such disablement, for the purpose of notice and claim for compensation, should date from the time the employee was notified by competent medical authority that he had such disease."

In the light of the above holding, the Industrial Commission finds, in the present case, that plaintiff is actually incapacitated because of silicosis from performing normal labor in the last occupation in which remuneratively employed, and concludes that he is thus disabled within the meaning of G.S. § 97-54; that such disablement occurred at the time of plaintiff's last exposure on 20 December, 1945; that he was first advised on or about 24 March, 1948, by competent medical authority that he had silicosis; and that he filed his claim for compensation and notified his employer on 24 April, 1948.

Hence, the judgment from which appeal is taken is hereby affirmed.