concurring: Since it is the duty of the court below, and also this Court, to sustain a finding by the Industrial Commission, when there is any evidence to support it, I do not see why we should argue further whether the deceased came to his death by reason of asbestosis, or why we should pick out the less favorable testimony of one expert as against several others who testified plainly that he did.
Pneumonia is indeed an infectious disease, but we are made to understand that just as the vulture swoops upon his disabled prey while yet there may be life, the latent germs of pneumonia are ready to take over the lung area when resistance has been destroyed. Pneumonia is such a close incident to lung injuries, and indeed to other injuries, that it is sometimes apparently regarded as merely the hand that opens the gate for the final flight.
*237Following McNeeley v. Asbestos Co., 206 N. C., 568, 174 S. E., 451, when silicosis, an occupational disease, was treated as an accident already within the scope of the then existing Workmen’s Compensation Act, and as such compensable, the Legislature of 1935 added to the list of things compensable under that act a large number of occupational diseases, including asbestosis. We may assume that in part, at least, this addition to the statute was made for the protection of industry, through the regulation of the conditions upon which compensation might be made for occupational diseasés. If there is observable in the statute the suggestion of a policy supposed to protect the industry against imposition, we are not required to go beyond the terms in which it is expressed. Whether the employer has the “edge” of advantage in these positions is a matter for the Legislature and not for us, but it is our duty to approach this case with some degree of liberality toward the labor employed in the industry, since the rule is universally accepted that statutes like the one under consideration are to he liberally construed in favor of the employee. While this does not permit us to set aside any rule established by the Legislature consistent with constitutional limitations, it nevertheless strongly enjoins upon us the duty of resolving fifty-fifty doubts in favor of compensation.
In the present instance we are dealing with what I should consider a very harsh provision of the law, operating more for arbitrary exclusion ■of asbestosis victims than for the reasonable protection of employers against imposition, unless its terms may be rationally explained.
Here are the conditions which have been suggested as standing in the way of compensation: Chapter 123, Public Laws of 1935; Michie’s Code of 1935, section 8081 (7) (o), requires a written notice to an employer within thirty days after a distinct manifestation of an occupational disease, and in case of death, also, a written notice of such death within ninety days after the occurrence. With special reference as to asbestosis, .-section 50%, subsection (g), of the 1935 Law, Michie’s Code of 1935, section 8081 (7) (g), provides: “An employer shall not be liable for any compensation for asbestosis, silicosis or lead poisoning unless disablement or death results within three years after the last exposure to such disease, or, in case of death, unless death follows continuous disability from such disease, commencing within the period of three years limited herein, «and for which compensation has been paid or awarded or timely claim ■made as hereinafter provided and results within seven years after such last exposure.”
We have here alternative conditions affecting compensation in case of death: first, if death follows continuous disability for which compensation has been paid or awarded; and, second, timely claim made, as hereinafter provided. Obviously, if payment has been made for a disability *238caused by asbestosis, or an award made therefor, the employer has notice that such a condition exists. If that has not occurred, then he is entitled to a notice of the condition within thirty days after its manifestation, and notice must be given within ninety days after the death. It is, therefore, first and last, a question of notice to the employer, and it was not intended that in the absence of such a written notice within thirty days after the manifestation of the asbestosis condition it should put the claimant against the alternative bar of his claim, upon the ground that death had not followed continuous disability. What we must deal with— and I see no disagreement as to this — is the question of notice which the statute requires to be given within thirty days after the distinct manifestation of asbestosis, and the ninety days notice after the death.
Similar provisions in insurance policies, as drastic if literally construed, have been relieved against upon the accepted theory that the law does not intend an unreasonable requirement which would defeat justice between the parties, especially when the party charged with liability has not been prejudiced by want of notice. Nelson v. Insurance Co., 199 N. C., 443, 154 S. E., 752; Gorham v. Ins. Co., 214 N. C., 526, 200 S. E., 5; Woodell v. Ins. Co., 214 N. C., 496, 199 S. E., 719; Allgood v. Ins. Co., 186 N. C., 415, 119 S. E., 561; Ball v. Assurance Corp., 206 N. C., 90, 172 S. E., 178. The Court would be loath to admit that the ends of justice were achieved in these cases by court repeal, rather than legitimate construction.
It is clear from the evidence that the deceased had no knowledge of the cause of his serious condition and, therefore, had no occasion to file any notice of it; nor, indeed, was there such a distinct manifestation of his disease as would inform him, a layman, of the condition, and apparently no physician or other competent person had given him any such information. His disease was a fact but he was unaware of it. A similar situation prevailed with regard to the widow in filing her claim. She had no knowledge whatever that the deceased had asbestosis or was suffering from any other compensable disease. She was informed of this after the autopsy, and the Commission, properly I think, found that she filed her claim within the ninety days after it was incumbent upon her so to do. This is the reasoning applied in the analogous cases cited, where the doctrine of liberal construction was not so imperative. Is the rule less commendable where our construction is required to be liberal ?
In no event has the defendant been prejudiced by a want of notice, unless, indeed, the technical defenses upon which it relied have not been found good. The fact that the man was afflicted with asbestosis, and the manner in which it had affected his lungs, was made clear by the autopsy. It was a condition which could not be simulated, faked, or suddenly produced; and, inevitably, it came from years of inhalation of asbestos *239dust and particles, and tbe daily lesion of lung tissue, and tbe filling up of tbe lungs witb inert matter and scar tissue tbrougb all tbat period. Whether tbe provisions in tbe original unamended act, Miebie’s Code of 1935, section 8081 (dd), relating to tbe finding by tbe Commission tbat an employer is not prejudiced by want of notice, applies to tbis case, I do not tbink it necessary to inquire. If it does, tbe Commission in setting forth tbe facts witb regard to tbe notice, and adjudging tbe claim to be compensable thereunder, may be deemed to have found tbat a want of notice is not prejudicial to tbe employer.
Tbe independent fact whether tbe deceased was disabled from normal labor has been questioned. Attention has been called to tbe fact tbat be did labor up to tbe time be left for Litbonia, Ga., as conclusive on tbe point. Tbe expert evidence in tbis case clearly indicates tbat be was disabled from normal labor, notwithstanding tbe fact tbat be did actually labor, and notwithstanding tbe fact tbat be gave no notice of tbe condition, himself being unaware of it. There is no question here of total disability. Whether bis labor was actually normal, we may-judge from tbe circumstances.
For a long period of time tbe deceased bad violent paroxysms of coughing during tbe mornings. Tbe paroxysms were so violent as to force tbe blood into tbe vesicles of bis skin until bis face became violently red. Tbe absence of oxygenation was apparent from tbe fact tbat at such times bis nails became black. Here was tbe most violent attempt of nature to expel not only tbe grinding asbestos particles witb which bis lungs were subsequently found to be impregnated, but also tbe fibrous scar tissue which bad taken tbe place of tbe open air cells, necessary to bis existence by tbe intake of air and oxygen. Tbe condition of bis lungs, although tbe cause of it was not apparent to tbe deceased, was indicated by tbe rales which accompanied bis difficult breathing. Thus, witb bis lungs torn by asbestos particles, which it was impossible for him to absorb or cough up, and filled witb fibrous instead •of cell tissue, be left his employment and went to Georgia, where tbe condition continued — without tbe abnormal temperature which would indicate tbat pneumonia bad supervened, for a period of time. Then pneumonia ensued, which tbe expert witnesses stated was tbe result of tbe asbestosis. When tbe time came to fight tbis, be was already half ■drowned witb solid matter:
But even if tbe man worked down to tbe last moment, tbis is not •conclusive as to bis disability. Tbe distinction is clearly brought out in tbe evidence of tbe experts who testified tbat be was disabled and should not have been at work.
Men are constituted differently. One may be inclined to quit work, .and do so, when bis physical powers are attacked by disease or injury, *240and consider himself totally disabled or disabled from normal employment. Conscientious experts passing on bis case will agree with him. Another, who has suffered greater impairment, will desperately arise to the emergency under the pressure of what is euphoniously called “economic necessity,” and which often means the necessity of fighting off starvation from the hungry mouths of his dependents, and will fight his handicap and carry on with a determination, intensity and courage that will not suffer abatement until his dead hands fall from the loom.
It is not at all necessary, however, to go into that matter, since we are here dealing with the question of notice, and on this question I am impelled to agree with the findings of the Full Commission and of the Superior Court, and, therefore, concur in the result reached here.