McDowell v. Town of Kure Beach

112 S.E.2d 390 (1960)

251 N.C. 818

Roy R. McDOWELL (Employee), v. TOWN OF KURE BEACH (Employer); and Travelers Insurance Company (Carrier).

No. 173.

Supreme Court of North Carolina.

January 29, 1960.

*394 Wessell & Crossley, Wilmington, for plaintiff appellant.

White & Aycock, Kinston, for defendants appellees.

WINBORNE, Chief Justice.

At the outset the Workmen's Compensation Act of North Carolina provides orderly procedure after an award is entered upon findings of fact and conclusions of law by the hearing commissioner. It is provided by G.S. § 97-85 that "if application is made to the Commission within seven days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award." Indeed, an award of the Commission upon such review, as provided in G.S. § 97-85, shall be conclusive and binding as to all questions of fact; but either party to the dispute may, within thirty days from the date of such award, * * * but not thereafter, appeal from the decision of said Commission to the Superior Court of the county in which the alleged accident happened, or in which the employer resides or has his principal office.

In Ruth v. Carolina Cleaners, Inc., 206 N.C. 540, 174 S.E. 445, 446, Brogden, J., writing for the Court had this to say: "The Industrial Commission has, within the limits prescribed by statute, continuing jurisdiction, and hence, as an administrative agency, empowered to hear evidence, and render awards thereon affecting the rights of workers, has and ought to have authority to make its own records speak the truth in order to protect its own decrees from mistake of material facts and the blight of fraud"; and the opinion concludes with this application of the principle: "The full commission finds and asserts that the award was not made in compliance with the provisions of the statute, and manifestly the commission is entitled to vacate an award which the commission itself admits was * * * contrary to law."

*395 Such is the situation in case in hand. It is provided by statute G.S. § 97-31(20) that the weekly compensation payments referred to in this Section shall be subject to the same limitations as to maximum and minimum as set out in G.S. § 97-29. And the provisions of the statute are applied in Kellams v. Carolina Metal Products, 248 N.C. 199, 102 S.E.2d 841. There the Court held that the weekly award should have been $8 instead of $2.76. Hence it was held that the Superior Court of Mecklenburg County should remand the case to the Industrial Commission for an amendment to its award striking out $2.76 and substituting $8 therefor.

Subsequent to this decision in the Kellams case the 1955 Session of the General Assembly passed an act (Session Laws 1955, Chapter 1026) amending G.S. § 97-29 by striking the word "eight" and inserting in lieu thereof the word "ten"effective from and after 1 July, 1955. Thus it was patent in instant case that the award of $4.88 as weekly compensation for permanent partial loss of use of back was error which should be corrected by inserting in lieu of that figure the figure "ten". To fail to do so, would work a grave injustice to the claimant. And, as stated in the Ruth case, supra, the Commission has, and ought to have authority to make its own records comply with the lawas indicated by the General Assembly; and it should do so even ex mero motu.

Moreover, defendants have elected not to pursue their right to appeal, but to withdraw their notice of appeal to the Full Commission. In this connection it is noted that the Full Commission in opinion of 29 August, 1958, took the position that whether an appellant will be permitted to withdraw his appeal is a matter addressed to the discretion of the court, and not a matter of right on the part of the appellant. This is accordant with decisions of this Court.

In State v. Grundler (State v. Jelly), 251 N.C. 177, 111 S.E.2d 1, 6. opinion by Moore, J., it is stated that "An appellant has the right to dismiss his appeal with leave of the court * * * And appeal is under the control of the court for all purposes and appellant does not have absolute right to dismiss it * * * To make the withdrawal effective the court must so order and leave of court is required * * * Application to withdraw appeal is addressed to the sound discretion of the court * * *."

As to certiorariin City of Sanford v. Southern Oil Co., 244 N.C. 388, 93 S.E.2d 560, 562, opinion by Barnhill, C. J., it is declared: "When the applicable statute provides an appeal from an administrative agency or an inferior court to the Superior Court, the procedure provided in the Act must be followed. A writ of certiorari cannot be used as a substitute for an appeal either before or after the time for appeal has expired. In proper cases an appellant may apply for a writ of certiorari when it is impossible for him to perfect his appeal during the time allowed by the statute. But the writ should not be allowed until or unless the application therefor makes it appear that (1) the aggrieved party cannot perfect the appeal within the time provided by the statute, (2) his inability to perfect the appeal within the time allowed is not due to any fault on his part, and (3) there is merit in his exceptions to the action of the administrative agency or inferior court, as the case may be" (citing cases).

Applying these principles to case in hand, it seems clear that the writ of certiorari was improvidently issued, and the judge of Superior Court was without authority to enter the judgment from which appeal is taken. Therefore it must be reversed, and the case remanded by Superior Court to North Carolina Industrial Commission for further proceeding in accord with legal procedure.

Reversed and remanded.

HIGGINS, J., took no part in the consideration or decision of this case.