Haynes v. . Feldspar Producing Co.

Seawell, J. The appeal presents the single question whether there is any evidence to support the finding of the Commission that the plaintiff was injuriously exposed to conditions augmenting his already contracted silicosis while in the employment of the defendant company. It is elementary that we are bound by the findings of fact of the Industrial Commission when they are supported by competent evidence, both *169 under the statute itself .and by the custom of the Court. We refrain from multiplying citations of authority. It is also equally well established that the evidence should be considered 'in the light most favorable to the plaintiff, and that he is entitled to the benefit of every reasonable inference therefrom. If the hypothetical question addressed to Dr. Yestal by Mr. Kimzey, examining member of the Commission, fairly represents the facts of the evidence — and we think it does — the affirmative answer of this medical expert must be accepted as competent evidence in support of the finding of the Commission. It is true that the witness was apparently dissatisfied with the form of the question — a feeling which seemed to be prompted by the thought that any advance in plaintiff’s disease during the comparatively short period of his employment by defendant might be regarded as negligible. Obviously, the witness could not be permitted to put his own construction on the law; and we think the definition supplied by the Commission was substantially correct. But outside of this opinion evidence, we find testimony of facts from which reasonable inferences may be drawn amounting to legal evidence; how strong is not for us to say. Dr. Vestal had examined the plaintiff on 12 October, 1936, 8 November, 1937, 7 June, 1938, 24 October, 1938, and 28 November, 1940. On the first examination, plaintiff’s condition was negative; in 1937, he had early silicosis, commonly referred to as “silicosis one,” without symptoms, and healed pulmonary tuberculosis; in 1938, his condition was still “silicosis one”; on 28 November, 1940, he had advanced silicosis with probable infection. This is the examination referred to in Dr. Vestal’s letter of 21 January, 1941, and no examination had been made meantime. Upon the last examination made after the plaintiff had been working-in the defendant’s mine for a period of two months, there was a remarkable advance in the disease over the condition existing at the previous examination. The plaintiff worked in defendant’s mine from 24 September, 1940, to 24 January, 1941, a period of four months. The same causes which originally gave rise to the silicosis were present in defendant’s mine in a very pronounced order. While the evidence shows that the maximum limit of safety is 10 million dust particles in a cubic foot of air, the plaintiff worked near the drill where there were 271 million dust particles per cubic foot of air, from there all the way to twenty feet from the drill where there were 30.2 million particles per cubic foot of air. Huge quantities of this flint-laden air must have been inhaled hourly. The same reasoning which would attribute a major portion of the plaintiff’s much advanced condition of silicosis to his previous exposure in the Tennessee mines would refer at least a minor part of it to his exposure in defendant’s mine. Otherwise, the Commission would *170 have been forced to accept tbe view that at the time the plaintiff entered the service of the defendant company, his disease had reached the point of saturation — that there was no longer any sound tissue in the lungs to be scarred by the cutting particles of flint and reduced to a fibroid state. But although his breath was short and his heart beat faster in an effort to oxygenate the blood through the narrowing lung area which still retained its function, we must assume, because he still lived and breathed, he was capable of further injury. Perhaps on a comparative basis, the chief responsibility for plaintiff’s condition morally rests upon his Tennessee employers; but not the legal liability. It must have been fully understood by those who wrote the law fixing the responsibility on the employer in whose service the last injurious exposure took place, that situations like this must inevitably arise, but the law makes no provision for a partnership in responsibility, has nothing to say as to the length of the later employment or the degree of injury which the deleterious exposure must inflict to merit compensation. It takes the breakdown practically where it occurs — with the last injurious exposure. Whether this properly distributes the burden of compensation over the industry is not for us to say. The law in its present form appears in the statutes of many states. If experience should require revision, it must be at the hands of the Legislature. It is to be noted that the prospective employer can avoid liability, if he so desires, by insisting that the candidate for employment be examined, and a prompt report made, before he is received into the service. A careful review leads us to the conclusion that the judgment of the court sustaining the award should be Affirmed. Barnhill, J., concurs in result.