Priddy v. BLUE BIRD CAB COMPANY

176 S.E.2d 26 (1970)

9 N.C. App. 291

Ernest Paul PRIDDY v. BLUE BIRD CAB COMPANY, Inc. and Aetna Casualty and Surety Company.

No. 7021IC366.

Court of Appeals of North Carolina.

August 26, 1970.

Certiorari Denied November 3, 1970.

*29 Robert M. Bryant, Winston-Salem, for plaintiff appellee.

Allan R. Gitter and Jimmy H. Barnhill, Winston-Salem, for defendants appellants.

Certiorari Denied by Supreme Court November 3, 1970.

MALLARD, Chief Judge.

The main question for decision in this case is whether there was sufficient competent evidence to support the finding of the Commission that the plaintiff was entitled to an award for life under the provisions of G.S. § 97-29 and G.S. § 97-41 because of total and permanent disability resulting from loss of mental capacity resulting from an injury to the brain.

The pertinent part of G.S. § 97-29 reads:

"In cases in which total and permanent disability results from * * * loss of mental capacity resulting from an injury to the brain, compensation * * * shall be paid during the life of the injured employee * * *."

*30 The pertinent part of G.S. § 97-41 reads:

"In cases where permanent total disability results from * * * loss of mental capacity caused by an injury to the brain * * * compensation shall be payable for the life of the injured employee as provided by G.S. 97-29."

In their briefs and upon the oral argument in this court, the parties agree that the words "mental capacity" as used in these statutes have not been defined in the statutes or in the cases handed down by the appellate courts of this State, and our research has found none. We are of the opinion that the words "mental capacity" as used in the two statutes under consideration are properly defined as that quality of mind which enables a person to act with reasonable discretion in the ordinary affairs of life and to comprehend in a reasonable manner the nature, scope and effect of his acts and conduct. Black's Law Dictionary, 4th Ed.; Gillikin v. Norcom, 197 N.C. 8, 147 S.E. 433 (1929); 26 C.J.S. Deeds § 54b, p. 720; 44 C.J.S. Insane Persons § 2, p. 39.

The statutes do not require that there be a total loss of mental capacity. What the statutes do require in order to sustain an award for life thereunder, is that there be a total and permanent disability resulting from a loss of mental capacity caused by an injury to the brain. "`Disability' as used in the Workmen's Compensation Act means impairment of wage earning capacity rather than physical impairment." Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968). The question of whether there has been a total and permanent disability resulting from a loss of mental capacity caused by or resulting from an injury to the brain is one of fact.

The evidence in this case is contradictory. Dr. Davis' reports tended to show that the plaintiff was only partially permanently disabled and that in his opinion the plaintiff was not totally and permanently disabled from loss of mental capacity resulting from an injury to the brain. The testimony of Dr. de la Torre tended to show that the defendant is totally and permanently disabled and revealed that the reason the plaintiff is totally and permanently disabled is because of his inability or capacity to control his temper since his brain injury. The evidence tended to show that prior to his brain injury, plaintiff was able to work and after the brain injury was not able to work because of his inability to control his temper. When considered in the light of the above definition of "mental capacity," the control of one's temper is a mental function.

The Commission is the judge of the credibility of the evidence and is the fact finding body under the Act. G.S. § 97-84. Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439 (1958). Where the evidence before the Commission is contradictory, the findings of fact by the Commission, which are nonjurisdictional, are conclusive on appeal to the Court of Appeals. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968); Evans v. Topstyle, Inc., 270 N.C. 134, 153 S.E.2d 851 (1967); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

We hold that there was sufficient competent evidence before the Commission to support its findings, that by reason of the plaintiff's injury by accident arising out of and in the course of his employment on 2 February 1963, he is now totally and permanently disabled resulting from loss of mental capacity resulting from an injury to the brain, and the award of compensation "continuing for the lifetime of the plaintiff" pursuant to G.S. § 97-29 and G.S. § 97-41.

*31 No prejudicial error is made to appear in appellant's other assignments of error.

The award of compensation herein is affirmed.

Affirmed.

PARKER and HEDRICK, JJ., concur.