Mason v. North Carolina State Highway Commission

159 S.E.2d 574 (1968)

273 N.C. 36

Donald Ray MASON and Reliance Insurance Company v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 768.

Supreme Court of North Carolina.

February 28, 1968.

*577 Atty. Gen. T. W. Bruton, Dep. Atty. Gen. Harrison Lewis, Asst. Atty. Gen. Henry T. Rosser and Staff Atty. Fred P. Parker, III, Raleigh, for defendant appellant.

Brooks & Brooks, Durham, for plaintiff appellees.

LAKE, Justice.

The record does not contain an express ruling by the majority of the Full Commission upon the motion of the claimants for the taking of further evidence and for permission to amend their affidavits. However, the memorandum of dissent by the unidentified commissioner, which is a part of the record, leads inescapably to the conclusion that the Full Commission did consider this motion and refused to allow it.

G.S. § 143-291 provides that the Industrial Commission "is hereby constituted a court for the purpose of hearing and passing upon tort claims" against this defendant and other agencies of the State. G.S. § 143-293 provides that an appeal from the commission to the superior court "shall be for errors of law only * * * and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them." Thus, the Industrial Commission is the trial court for such claims.

In Tindall v. American Furniture Co., 216 N.C. 306, 4 S.E.2d 894, we said:

"In the Superior Court upon appeal from an award by the Industrial Commission, the court has power in proper case to order a rehearing, and to remand the proceeding to the Industrial Commission, on the ground of newly discovered evidence, but this is a matter within the sound discretion of the court."

In that case, as here, the motion for leave to offer new or additional evidence was made in and denied by the Industrial Commission. The superior court affirmed the award of the commission and this Court affirmed the judgment of the superior court, citing as authority for the above *578 quoted statement Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799, and Byrd v. Gloucester Lumber Co., 207 N.C. 253, 176 S.E. 572.

In the Butts case the Industrial Commission, while the matter was pending before it, allowed a motion for rehearing on the ground of newly discovered evidence. On appeal from such order the superior court reversed the commission. This Court held that was error and said that the appeal from the order of the commission should have been dismissed. Thus, the Butts case is not authority for the proposition that the superior court may reverse the ruling of the Industrial Commission upon such a motion.

In the Byrd case, the motion for a further hearing by the commission was made originally in the superior court on the ground of evidence discovered subsequent to the appeal from the commission to that court. The superior court allowed the motion and this Court affirmed, saying that this Court has the power to consider a motion for a new trial "of an action pending here on appeal, on the ground of newly discovered evidence, and in a proper case to grant the motion." This Court further said in the Byrd case: "Whether the judge of the superior court shall exercise this power in any proceeding pending in said court rests upon his discretion. His action, therefore, is ordinarily not subject to review by this court." Thus, the Byrd case is not authority for the proposition that the superior court may reverse a denial by the Industrial Commission of such motion made before it while the proceeding was still pending before the commission.

In Hall v. Thomason Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857, this Court construed a motion, originally filed before the Industrial Commission, as a motion for further hearing for newly discovered evidence and directed that the matter be "returned to the Industrial Commission, which will determine, according to its own rules and the legal principles applicable to newly discovered evidence, whether it will grant plaintiff the requested rehearing with reference to his diminished earning capacity." There, this Court said the proceeding had been heard by the Industrial Commission under a "misapprehension of applicable principles of law," the commission having treated and passed upon the claimant's motion as a motion to reopen for change of condition rather than a motion for further hearing on the ground of newly discovered evidence. Thus, in the Hall case there was no reversal of a denial by the commission of a motion for further hearing on the ground of newly dicovered evidence, but a remand to the commission for its determination of such motion.

In Thompson v. Johnson Funeral Home, 208 N.C. 178, 179 S.E. 801, it was held that the superior court may grant a motion, originally made in the superior court, to remand a workmen's compensation proceeding to the commission in order that the commission may hear evidence and to make a finding upon a jurisdictional question. Connor, J., there said: "When the proceeding has been remanded to the Industrial Commission, the commission will determine, in accordance with its rules, whether it will hear evidence tending to show the number of employees in the employment of the defendant employer * * * and if it shall hear evidence offered by the plaintiffs, * * * will have the power to make such findings a part of the record in this proceeding. * * * These findings of fact, being jurisdictional, will be subject to review by the superior court." The Court did not say that a denial by the commission of a motion before it to hear further evidence upon a matter properly before it is subject to reversal by a reviewing court.

In Webb v. Gaskins, 255 N.C. 281, 121 S.E.2d 564, this Court, speaking through Parker, J., now C.J., said:

"As long as the trial court has jurisdiction over a cause, it seems to be *579 thoroughly settled law in this nation, including this jurisdiction, that a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge, and that his ruling thereon may not be made ground for reversal on appeal unless the appellant can show a manifest abuse of judicial discretion."

In Frye & Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E.2d 790, Johnson, J., speaking for the Court, said:

"[A] motion for a new trial on the ground of new evidence, discovered during the trial term, is addressed to the discretion of the trial judge, and his decision, whether granting or refusing the motion, is not reviewable in the absence of an abuse of discretion."

There is nothing in the present record to show that the Industrial Commission, in denying the motion for a further hearing for the introduction of additional evidence, abused the discretion thus vested in it as the trial court or that it failed, in passing upon such motion, to observe the prerequisites for the granting thereof prescribed in Johnson v. Seaboard Air Line R.R., 163 N.C. 431, 79 S.E. 690, and quoted with approval in Bailey v. Department of Mental Health, N.C., 159 S.E.2d 28, decided February 2, 1968, and in McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467.

Neither the motion filed in the Industrial Commission nor the judgment of the superior court specifies what new evidence the Industrial Commission is to receive and consider. The superior court has no general power to remand a matter of this nature to the Industrial Commission for the taking of additional evidence and the finding of further facts. Bailey v. Department of Mental Health, supra.

The record shows that Howard Vernon Moore testified that he was the employee in actual supervision of this repair project and that he was cross examined by the claimants. The record further shows that Moore testified Perry was present in the hearing room and was the employee who looked after placing the flambeaus. Perry was not called as a witness by the claimants and there is nothing to indicate that they sought a temporary recess in order to confer with him.

The affidavit required by G.S. § 143-297 to be filed by a claimant under the Tort Claims Act is the equivalent of a complaint in an ordinary tort action. The allowance of an amendment of a pleading, after the expiration of the time allowed therefor by statute, is ordinarily a matter resting in the sound discretion of the trial court and its ruling thereon is not subject to review upon an appeal in the absence of a clear showing of abuse of such discretion. Moore v. New York Life Ins. Co., 266 N.C. 440, 146 S.E.2d 492; Park Terrace, Inc. v. Phoenix Indemnity Co., 241 N.C. 473, 85 S.E.2d 677; Handley Motor Co. v. Wood, 238 N.C. 468, 78 S.E.2d 391. The record does not show an abuse of discretion by the Industrial Commission, the trial court in this instance, in its denial of the motion by the claimants to amend their affidavit.

Bailey v. Department of Mental Health, supra, was a proceeding under the Tort Claims Act. This Court, speaking through Branch, J., said:

"The scope of the reviewing court's inquiry in cases appealed from the Industrial Commission is succinctly stated by Ervin, J., in the case of Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, as follows: "`In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) whether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision.'"

*580 The order of the superior court allowing the amendments to the affidavits and remanding the matter to the North Carolina Industrial Commission with directions to take newly discovered evidence and additional evidence, to make additional findings, and conduct a rehearing in accordance with the judgment of the superior court, was error and is hereby reversed. The superior court not having passed upon the remaining exceptions of the claimants to the order of the Industrial Commission, which exceptions relate to the findings of fact and to the conclusion of law, the matter is hereby remanded to the superior court for its determination of whether such findings are supported by competent evidence and, if so, whether such findings support the conclusion of law made by the commission and its denial of the claims.

Reversed and remanded.

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