Mayberry v. Oakboro Granite & Marble Co.

PeR Cueiam. The particular work in which claimant was engaged from 1 February, 1953, through 19 February, 1953, appears to have involved less hazard than other work in which he had engaged at prior times. Even so, we cannot say that there is insufficient competent evidence to support the challenged findings of fact. Therefore, the assignments of error of defendant employer are overruled. All members of this Court agree that the employer is liable to the claimant for the full amount of the award. Must the carrier discharge all or any part of the employer’s liability therefor? All members of this Court agree that the determination of this question involves the construction to be placed on G.S. 97-57, which provides: “Employer liable. — 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.” From this point, the members of this Court find themselves in a three-way division of opinion. [283] Barnhill, C. J., and Denny and Parker, JJ., are of opinion that, since the last day of claimant’s exposure to the inhalation of the dust of silica or silicates was 19 February, 1953, on which date disablement occurred, the liability of the employer was fixed as of that date; and that, since the carrier was not then on the risk, the award must be paid in full by the employer. Winborne and Higgins, JJ., are of opinion that exposure in February, 1953, being less than for thirty working days and less than a calendar month, should be disregarded as non-injurious; and that, since the carrier was on the risk during the period of injurious exposure prior to 1 February, 1953, the award must be paid in full by the carrier. Johnson and Bobbitt, JJ., are of opinion that the last thirty working days, or parts thereof, when claimant was exposed to the inhalation of the dust of silica or silicate's, constitute the period of last injurious exposure and the basis of the employer’s liability; and that, since the carrier was on the risk during part but not all of this period, the carrier must pay pro rata according to the number of working days, or parts thereof, in this period it was on the risk. The result is that the only proposition on which four of us agree is that the carrier must pay at least a pro rata part of the award. Accordingly, this must be the basis for disposition of the appeal. There is evidence in the record, but no findings of fact, that the last thirty working days, or parts thereof, of claimant’s exposure, consists of sixteen working days prior to 1 February, 1953, and of fourteen working days after 31 January, 1953. The award is vacated and the cause remanded to the North Carolina Industrial Commission for further proceedings. In such further proceedings, the Commission will find the facts as to the dates of the last thirty working days, or parts thereof, the claimant was exposed to the inhalation of the dust of silica or silicates. Upon determining the number thereof prior to 1 February, 1953, and the number thereof subsequent to 31 January, 1953, the Commission will fix the portions of the award to be discharged by the employer and the carrier, respectively. This disposition of this case does not become a precedent for any of the indicated divergent views. Hence, the members of this Court have refrained from setting forth at large the reasons for their respective opinions. In view of the present conflict of opinions as to the construction of G.S. 97-57, as related to a factual situation such as that here presented, the need for legislative clarification is indicated. Error and remanded.