dissenting: A careful examination of the record discloses that all of the evidence tending to show that the deceased, prior to his death, suffered from asbestosis is hearsay, being largely based on an unsworn unidentified report by the United States Public Health Service. All of the evidence tends to show that the death of the deceased was caused by pneumonia, a germ disease or infection, and that the only effect that asbestosis could have had' in contributing to his death lies in the fact that it had a tendency to lower his resistance. There is no-evidence that pneumonia was not sufficiently virulent to have caused death irrespective of the existence of asbestosis. Pneumonia being an infectious disease reference might be had to the medical reports relied on in which it is made to appear that he was suffering both from infected tonsils and pyorrhea — conditions which are resistance reducing and provide a fruitful field for the lodgment of pneumonia germs. And the medical testimony tends to show that lobar pneumonia (the cause of the death of the deceased) is more prevalent in strong, apparently healthy, normal individuals than in any other type; that pneumonia patients die not from the condition of the lungs but from the toxemia the presence of bacteria produces; and that the disease is no more prevalent in cases of asbestosis than it is in other patients.
Much could be said as to these aspects of the evidence which make it. appear that the presence of asbestosis was incidental and that it could not be said that it was the efficient proximate cause of his death as indicated by the testimony of Dr. Easom, chairman of the Advisory Medical Committee appointed under the Occupational Disease Law and Director of the Industrial Hygiene Division of the Board of Health of the Industrial Commission, as follows: “I think it is very probable that the pneumonia might have been fatal without the asbestosis, he might have died of pneumonia even without the asbestosis; there is no way in the world of proving that this man would have or would not have died *241without having the asbestosis . . . it is my opinion that pneumonia is no more prevalent in cases of asbestosis than it is in other patients . . . in my opinion the asbestosis played no significant part in his death . . . most pneumonia patients die from the toxemia from the bacteria that is present. I do not believe that the presence of the asbestosis had any effect one way or the other on the toxemia.” Dr. Murphy, a member of the Industrial Commission Advisory Medical Committee, testified to like effect.
Dr. Stewart, who attended the deceased during his illness, frankly stated: “I don’t know what asbestosis is.” His opinion and the opinions of other doctors who testified were based upon evidence that was wholly incompetent. But as I view the record it is unnecessary to debate the question of proximate cause of death. The claimants have no right to compensation under express terms of the statute.
Ch. 123, Public Laws 1935, amends the Workmen’s Compensation Act so as to add sec. 50%, providing for the payment of compensation in certain cases of occupational diseases. As thus amended, sec. 50% (g) provides that “an employer shall not be liable for any compensation for asbestosis . . . 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.”
Under this section the claimant must prove that the disablement or death resulted within three years after the last exposure to such disease unless it is shown that compensation was paid or awarded or timely claim made, as provided in the act, prior to death. In that event it is sufficient to show that the death resulted within sevén years after the last exposure. However, the act expressly provides that there shall be no liability for the payment of compensation in either event unless death follows continuous disablement from such disease commencing within three years after the last exposure. Proof thereof is a condition precedent to recovery, as is the provision for notice.
Disablement or disability as used in this section, as expressly defined in the statute 50% (g) in respect to cases of asbestosis, means “the event of becoming actually incapacitated because of such occupational disease from performing normal labor in the last occupation in which remu-neratively employed.”
The deceased continued in his employment until 25 March, 1937, at which time he quit work for the purpose of taking a pleasure trip to Georgia. Before leaving for Georgia he contracted a severe cold |ol-lowed by pneumonia from which he died 1 April, 1937. He was not *242then and bad never been disabled from asbestosis as defined in tbe statute. Tbe Commission found as a fact “that tbe deceased never knew be bad asbestosis.” How, tben, could bis death follow “continuous disability from sucb disease . . . for wbicb compensation bas been paid or awarded 'or timely claim made” ?
Tbe plaintiffs bave failed to establish tbe conditions under wbicb tbe employer is liable for compensation. Tbe case is plainly not within tbe terms of tbe statute.
Whether these restrictions upon tbe right of recovery in case of death from asbestosis unduly limits tbe right to compensation is not for us to determine. Tbe Legislature bas written tbe statute in clear and unmistakable language and it is our duty to apply it as written.
Tbe Workmen’s Compensation Act (cb. 120, Public Laws 1929, as amended by cb. 123, Public Laws 1935) further provides that no compensation shall be paid for asbestosis “unless written notice of tbe first distinct manifestation of an occupational disease shall be given to tbe employer in whose employment tbe employee was last injuriously exposed to tbe hazards of such disease or to tbe Industrial Commission within thirty days after sucb manifestation, and, in case of death unless also written notice of sucb death shall be given by tbe beneficiary hereunder to tbe employer or tbe Industrial Commission within ninety days after occurrence.” Sec. 50½ (o). Two separate and distinct notices are required: (1) Notice of tbe first manifestation of tbe disease prior to tbe death of tbe employee; and (2) written notice of sucb death within ninety days after death occurs. Tbe provisions of tbe statute bave not been complied with either as to tbe notice prior to death or to tbe notice after death.
Tbe Commission found that tbe claimants made out notice and claim for compensation '19 July, 1937, and filed sucb notice and claim with tbe employer and tbe Industrial Commission 20 July, 1937, wbicb was more than 90 days after death occurred 1 April, 1937. Therefore, tbe conclusion of tbe Commission that sucb notice was served within 90 days, as required in section 50½ (o), is not supported by tbe record.
In this connection it is well to note that tbe provisions of sec. 50% (o) clearly make tbe provisions of sec. 22, ch. 120, Public Laws 1929, inapplicable, for it is provided that notice is deemed to bave been waived: (1) Where the employer or insurance carrier voluntarily makes compensation payments therefor; or (2) within tbe time above limited, bas actual knowledge of tbe occurrence of tbe disease or of tbe death and its cause; or (3) by bis or its. conduct misleads tbe injured employee or claimant reasonably to believe that notice and/or claim, bas or bave been waived. And it does not appear that notice bas thus been waived by tbe defendants.
*243Rut if it be conceded, as tbe majority opinion asserts, that tbe provisions of sec. 22, cb. 120, Public Laws 1929, are controlling as to notice in the case at bar, then we must bear in mind tbat it is there provided tbat “no compensation shall be payable unless such written notice is. given within thirty days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.” If the claimants, seek to excuse the failure to give notice under the terms of this provision the burden is on them. They did not seek to so show. Even had they done so the Commission has not found that such facts appear to its. satisfaction as it is required to do before the want of notice becomes immaterial. Singleton v. Laundry Co., 213 N. C., 32. As the Commission has not found “reasonable excuse” to its satisfaction or that “the employer has not been prejudiced thereby,” the failure to give notice is. material even under this section.
Furthermore, it is apparent from the record that no effort was made to-substantially comply with the provisions of 50½ (r).
A careful reading of the pertinent statute leads me to the conclusion that it clearly appears that the Legislature intended that there should be no compensation paid for death from asbestosis unless the employee,, during his lifetime, at least recognized that he was suffering from asbestosis and had made claim for, or the employer had voluntarily made-payments of, compensation; and, unless thirty days notice of the existence of asbestosis was given prior to death and notice of death was served within ninety days thereafter, or waived as provided by the-statute. If this be correct the claimants are not entitled to compensation.
I am aware of and in full accord with the rule of liberal interpretation when the Workmen’s Compensation Act is under consideration. However, this rule when followed to its fullest extent does not require us to write into the statute provisions the Legislature has elected to omit or to disregard positive provisions therein contained.
I am unable to agree with the reasoning in the majority opinion or with that in the concurring opinion to the effect that we are dealing only with the question of notice. As I view it the failure to give the required notice is a secondary feature of the case. The plaintiffs have failed to-establish the right to compensation in the first instance, irrespective of notice.
The hearing Commissioner was correct in his conclusion that no compensation should be awarded. We should so hold and reverse the judgment below.
Stacy, C. L, and WiNBORNE, L, concur in this opinion.