Coleman v. City of Winston-Salem

291 S.E.2d 155 (1982)

Bud COLEMAN, Father; Dora Coleman, Mother; Shirley Jean Robinson, Guardian Ad Litem for Christopher D. Fuller, Minor Son; Colebles Coleman, Jr., Deceased, v. CITY OF WINSTON-SALEM, Self-Insured.

No. 8110IC922.

Court of Appeals of North Carolina.

May 4, 1982.

*157 R. Lewis Ray & Associates by R. Lewis Ray, Winston-Salem, for plaintiffs-appellants and plaintiffs-appellees, Bud Coleman and Dora Coleman.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and James M. Stanley, Jr., Winston-Salem, for defendant-appellant.

Morrow & Reavis by John F. Morrow, Winston-Salem, for appellee, Shirley Jean Robinson.

VAUGHN, Judge.

The primary question for resolution by the Commission was whether the death of the employee was proximately caused by intoxication. The Commission made no findings on that issue. Instead, it found that there was "no evidence that the death was caused by intoxication." (Emphasis added). We conclude there was ample evidence which would have permitted, but not compelled, a finder of the facts to find that the employee's drunkenness proximately caused his death, and we reverse the decision. It was the duty of the Commission to resolve the issues on the evidence before it. It is the responsibility of the Commission, of course, to weigh the evidence, direct as well as circumstantial, and the reasonable inferences arising therefrom. It cannot, however, ignore any of the evidence. It must consider all the evidence, make definitive findings and proper conclusions therefrom and enter an appropriate order. Harrell v. Stevens & Co., 45 N.C.App. 197, 262 S.E.2d 830 (1980).

The Commission, as well as the employee, appears to rely heavily on the decision of this Court in Lassiter v. Town of Chapel Hill, 15 N.C.App. 98, 189 S.E.2d 769 (1972). In that case, the Commission specifically found "that even though deceased had sufficient alcohol in his blood at the time of his death to be intoxicated, the death of deceased was not occasioned by intoxication." In that case, therefore, the Commission made a finding on the question of proximate cause. It is elementary that findings of the Commission are binding on appeal if supported by competent evidence. Although not set out in the Court's opinion in Lassiter, the record on appeal in that case discloses that the Commission found, in substance, that the operator of a garbage truck failed to see that deceased was leaning inside the compactor to empty his collection barrel. The driver's attention was diverted by some children near the truck. He "started operating the compacting devices inside the truck which caught the upper portion of deceased's body and crushed him." All that Lassiter stands for, therefore, is that since the Commission obviously concluded that the truck driver's oversight was the proximate cause of the death, it was not error for the Commission to fail to make a specific finding on decedent's intoxication.

Plaintiffs Bud Coleman and Dora Coleman appeal from that part of the Commission's order awarding plaintiff minor son compensation benefits. G.S. 97-39 states that "a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee." The Colemans contend that Christopher Fuller was only partially dependent upon the deceased employee and that the conclusive presumption of G.S. 97-39 violates the Fourteenth Amendment. Plaintiffs' brief fails to set forth either assignments of error or exceptions as required by Rule 28(b)(3) of the Rules of Appellate Procedure. The appeal is, consequently, subject to dismissal. State v. Shelton, 53 N.C.App. 632, 281 *158 S.E.2d 684 (1981). Nevertheless, it is clear that the argument is without merit for the reasons, among others, set out in Carpenter v. Tony E. Hawley Contractors, 53 N.C.App. 715, 281 S.E.2d 783, cert. denied, 304 N.C. 587, 289 S.E.2d 377 (1981).

The award is vacated, and the case is remanded for findings based on the present record and proceedings not inconsistent with this opinion.

Vacated and Remanded.

ROBERT M. MARTIN and ARNOLD, JJ., concur.