Bame v. Palmer Stone Works, Inc.

*272 "WiNBORNE, J. Among the several assignments of error presented by appellant for consideration on this appeal, there is the one relating to the denial of its motions, aptly made, for judgment as of nonsuit. It is urged that the motion should have been allowed on the ground (1) that the employer is not liable to employee under the common law for diseases contracted during the course of employment; and (2) that plaintiff has failed to show that any negligence of defendant within the period of the statute of limitations was the proximate cause of bis present complaints. In the light of appropriate principles of law applied to the evidence in the case, we are of opinion and bold that neither of these grounds is tenable. I.n connection with the first contention, it is admitted that defendant, as employer, has rejected the provisions of the North Carolina "Workmen's Compensation Act, Chapter 97 of General Statutes, and did not operate under it. G.S. 97-3 and G.S. 97-4. It does not appear that plaintiff, as employee, has elected not to- operate under the act. Hence, plaintiff may not invoke the provisions of the said act, but is relegated to a common law action to recover damages for any injury be may have suffered in the course of bis employment by defendant. And in such case the statute G.S. 97-14 provides that “An employer, who elects not to operate under this article, shall not in any suit at law instituted by an employee subject to this article to recover damages for personal injury or -death by accident, be permitted to defend any such suit at law upon any or all of'the following grounds: (a) That the employee was negligent. (b) That the injury was caused by the negligence of a fellow employee, (c) That the employee assumed the risk of injury.” Thus; ordinarily,’ there is involved in such an action only the issues of actionable negligence, and damages. In the light of these provisions, we are of opinion that, where an occupational disease is contracted by an employee, in the course of his employment, as the result of negligence of the employer in failing to exercise ordinary care to provide a reasonably safe place in which to do bis work, a common law action for damages may be maintained by the employee against the employer. The purpose of such action is the redress of a wrong. And while the subject of occupational disease, as it is related to the North Carolina "Workmen’s Compensation Act has been the subject of decisions of this Court, for instance, McNeely v. Asbestos Co., 206 N.C. 568, 174 S.E. 451, the question of liability of employer, at common law in such cases, is of first impression in tbis State, we find it has been the subject of decisions in other jurisdictions. the decisions are summarized in 35 American Jurisprudence 533, Master and Servant, Section 105, in tins manner : “On the subject of the liability of an employer, at common *273 law, for an occupational disease contracted by an employee, there is considerable conflict of opinion. There are many statements, often pure dicta, to be found in decided cases that no action lies at common law for damages for an occupational disease, and this view has been crystallized by some decisions expressly denying any such common law liability. Such statements and decisions seem broad enough to exclude any recovery in an action at law for an occupational disease even where there has been some negligence on the part of the employer. The trend and weight of authority, however, recognizes the liability of an employer to an employee for an occupational disease incurred by the employee in the course of his employment where some negligence can be laid at the employer’s door,— such as failure to provide a safe place in which to work ... or where the employer has some superior knowledge of the danger to employees, to warn the employee of the danger he is incurring.” Eor further analysis of the subject, see Anno. 105 A.L.R. 80. As to the second contention, the evidence appears to be sufficient to take the case to the jury on the question of proximate cause. However, certain of the assignments of error relating to exceptions to portions of the charge appear to be well taken. First, Exception 9: To that portion of the charge in which the court gave instructions as to actionable negligence. In doing so, it appears that the court prefaced these instructions with this statement: “It is important for you to understand at the outset, gentlemen, what is meant by negligence as implied in cases of this character.” Appellant contends that the reasonable meaning of this portion of the charge is that on the facts which the jury had heard from the witnesses, an implication or presumption arose that the defendant was negligent. In this connection the word “implied,” as defined by "Webster, means “virtually involved or included; involved in substance; inferential; tacitly conceded.” Hence, when the word “implied,” as used by the court, is given this meaning, it is prejudicial to defendant. For no such concession is made, nor is negligence implied. On the other hand, plaintiff, appellee, says that “When one considers the charge of the court in its entirety, it is convincingly obvious that the meaning of the word ‘applied’ was ascribed to the word ‘implied.’ ” Probably the word “applied” may have been used. But, howbeit, we must accept the record as it comes to us. The record imports verity, and this Court is bound by it. See, among others, these recent opinions: Ericson v. Ericson, 226 N.C. 474, 38 S.E. 2d 517; S. v. Gause, 227 N.C. 26, 40 S.E. 2d 463; S. v. Wolfe, 227 N.C. 461, 42 S.E. 2d 515; Yarn Co. v. Mauney, 228 N.C. 99, 44 S.E. 2d 601; Morgan v. Coach Co., 228 N.C. 280, 45 S.E. 2d 339; S. v. Robinson, 229 N.C. 647, 50 S.E. *274 2d 740; S. v. Cockrell, 230 N.C. 110, 52 S.E. 2d 7; S. v. Chase, 231 N.C. 589, 58 S.E. 2d 364. Even so, plaintiff, appellee, contends that the doctrine of res ipsa loquitur is applicable in this case. This contention is not well founded. Second: Exception 14 is directed to a portion of the charge relating to the first issue; Exceptions 15, 16 and 17, to a portion of the charge relating to the second issue; and Exception 18, to a portion of the charge relating to the third issue. Defendant’s challenge to the correctness of these portions of the charge is predicated upon the contention that the case is one where plaintiff complains of continuing separate acts of negligence and continuing separate injuries from day to day while be was working, and that if be has a cause of action in this case it consists of a right to recover damages for such injuries proximately caused by negligence of defendant within the three years next before the action was commenced. It is contended that the portions of the charge to which these exceptions relate fail to make clear this limitation upon the right of plaintiff to recover. It is pointed out particularly that in those portions relating to the issue of negligence and to the issue of damages no reference is made to the principle that the damages must be confined to such as proximately resulted from negligent acts of defendant committed within threo years before the action was brought. In the light of the evidence in the case, it appears that these contentions have merit, and that the omissions referred to are prejudicial to defendant. Other assignments of error are not considered. For causes stated, there must bo a New trial.