Worsley v. S. & W. RENDERING CO.

Annotate this Case

80 S.E.2d 467 (1954)

239 N.C. 547

WORSLEY v. S. & W. RENDERING CO., Inc. et al. SUGG v. S. & W. RENDERING CO., Inc. et al.

No. 101.

Supreme Court of North Carolina.

March 3, 1954.

*469 Ruark, Young & Moore, Raleigh, for defendants-appellants.

Battle, Winslow & Merrell, Rocky Mount, for plaintiffs-appellees.

BARNHILL, Chief Justice.

While defendants in their application for a review by the full Commission of the award made by the hearing Commissioner assigned certain errors on the part of the hearing Commissioner, they entered no exception either to the findings of fact or conclusions of law made by the full Commission. Neither did they except to the award entered. They were content to give notice of their appeal to the Superior Court. Greene v. Mitchell County Board of Education, 237 N.C. 336, 75 S.E.2d 129.

In appeals from the Industrial Commission to the Superior Court, the procedure should conform substantially to that in appeals from subordinate courts where, by statute, appeals are restricted to questions *470 of law, or to the consideration of exceptions to the report of a referee. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869; Anderson v. McRae, 211 N.C. 197, 189 S.E. 639; Gurganus v. McLawhorn, 212 N.C. 397, 193 S.E. 844. The appellant should file a bill of exceptions setting out specifically each error of law he alleges was committed by the Commission in making the award. And of course an exception to a finding of fact by the Commission on the ground that there was no sufficient competent evidence to support the same presents a question of law for the court to decide. Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173.

When an appeal from the Industrial Commission comes on for hearing in the Superior Court the Judge before whom the appeal is heard sits as an appellate court. He can find no facts. Instead, his function is to review alleged errors of law made by the Commission and presented to him for review by the exceptions entered. He should overrule or sustain each and every exception addressed to alleged errors of law thus designated, so that the party aggrieved by his rulings may except thereto and present the question to this Court for review. Fox v. Mills, Inc., supra.

On an appeal to this Court from the judgment of the Superior Court affirming or reversing an award of the Industrial Commission, this Court is limited to a consideration of the contention of the appellant that there was error in matters of law at the hearing in the Superior Court. This contention must be presented to this Court by assignments of error based on exceptions to specific rulings of the Superior Court. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Smith v. Texas Co., 200 N.C. 39, 156 S.E. 160; State v. Parnell, 214 N.C. 467, 199 S.E. 601; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85; Powell v. Daniel, 236 N.C. 489, 73 S.E.2d 143; Thompson v. Thompson, 235 N. C. 416, 70 S.E.2d 495; Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

The Supreme Court can review only such questions as are presented by exceptions duly taken and assignments of error duly made. Wilson v. City of Charlotte, 206 N.C. 856, 175 S.E. 306; Woody Bros. Bakery v. Greensboro Life Insurance Co., 201 N.C. 816, 161 S.E. 554; Clark v. Henderson, 200 N.C. 86, 156 S.E. 144. And so, "It is elementary that if a litigant would invoke the right of review, he must point out specifically and distinctly the alleged error." Thompson v. Thompson, supra [235 N.C. 416, 70 S.E.2d 497]; State v. Dilliard, supra. "Under the rules of practice in this court, the questions arising on an appeal are those defined by appropriate exceptions taken by the appellant in the superior court." Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179, 182.

A broadside assignment of error never serves to invite this Court to engage in a voyage of discovery by reviewing the record for the purpose of ascertaining whether the judge committed error at some time and in some way during the progress of the trial. Rader v. Queen City Coach Co., supra; Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 S.E.2d 307; State v. Sutton, 230 N.C. 244, 52 S.E.2d 921; Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427; State v. Jones, 227 N.C. 402, 42 S.E.2d 465. It is the duty of the appellant, not this Court, to choose those rulings of the court below which he desires to assail as erroneous.

It follows that when it is claimed that findings of fact made by the Industrial Commission and approved by the judge are not supported by competent evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged error. Rader v. Queen City Coach Co., supra; Clodfelter v. North Carolina Gas Corp., 231 N.C. 343, 56 S.E.2d 600; Town of Burnsville v. Boone, supra.

"An assignment of error alone will not suffice. Only an assignment of error bottomed *471 on an exception duly entered in the record will serve to present a question of law for this court to decide." State v. Williams, 235 N.C. 429, 70 S.E.2d 1, 2.

"Where there is a single assignment of error to several rulings of the trial court and one of them is correct, the assignment must fail." Rader v. Queen City Coach Co., supra [225 N.C. 537, 35 S.E.2d 610], and cases cited.

When this record is reviewed in the light of these rules of appellate procedure, established by numerous decisions of this Court, it becomes manifest that neither the appeal from the Industrial Commission to the Superior Court nor the appeal from the Superior Court to this Court presents any substantial questions of law for review.

On their appeal from the hearing commissioner to the full Commission the defendants duly entered exceptions which presented to the full Commission the questions they now seek to have us decide. But on their appeal from the full Commission to the Superior Court they filed no exception to any finding of fact or conclusion of law made by the full Commission. Neither did they except to the award entered. They were content to give written notice of their appeal to the Superior Court "for errors in law in the review of an award made by the Full North Carolina Industrial Commission * * *."

The appeal, being unsupported by any exceptions, amounted to nothing more than a general broadside exception to the decision and award of the Commission. It did not serve to challenge the sufficiency of the evidence to support the findings of fact of the Commission or any one of them. At most it carried up for review in the Superior Court the single question whether the facts found by the Commission support the award. Greene v. Mitchell County Board of Education, supra, and cases cited; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421; Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476.

The full Commission found that (1) the claimants suffered injuries by accident which resulted in temporary total disability, (2) the relationship of employer-employee existed between them and the employer at the time of the accident, (3) the accident arose out of and in the course of their employment, and (4) the money paid the claimants during their disability was paid to them as executives and not as employees of the employer.

On this record the judge was bound by the facts thus found. He was not required to and did not review the testimony to determine whether there was any competent evidence to support them. That question was not presented to him for consideration and he properly refrained from making any ruling in respect thereto. He merely concluded that the conclusions of law were supported by the facts found and affirmed the award.

The only exception defendants entered at the hearing in the court below is an exception to the judgment. Their first four assignments of error are directed to alleged errors of law committed by the full Commission. But we do not review the rulings and decisions of the Industrial Commission. That is the prerogative of the Superior Courts. We review decisions of the Superior Court and then only when the alleged error is specifically presented by an assignment of error supported by an exception duly entered or, when the admissibility of evidence is involved, at least by an objection. Ch. 150, S.L.1949; Cathey v. Shope, 238 N.C. 345, 78 S.E.2d 135.

The only assignment of error directed to the judgment entered in the court below is as follows:

"For that his Honor Walter J. Bone erred in concluding as a matter of law, or as a mixed question of law and fact, that either of the plaintiffs was entitled to recover compensation of the defendants or medical expenses from the defendants and in signing a judgment in conformity with *472 and confirming the award of compensation and medical expense theretofore issued by the North Carolina Industrial Commission and in signing the judgment appealed from."

Under this assignment the defendants discuss in their brief and seek to have us decide these two questions:

(1) "That claimants were executives and not employees, and, the insurance carrier not having been paid a premium on the salary of Worsley, it is not estopped to contend that he was an executive and thus outside the Act."

(2) "That even if it is held that Worsley was not excluded from the Act, he is not entitled to compensation payments since his employer continued to pay his full salary and he had no wage loss."

But the court below made no conclusions of law other than the conclusion that the facts found by the full Commission support its conclusions of law and sustain the award. Whether the claimants were acting as executives or employees at the time of their injuries and whether they have been paid full compensation as employees during the period of their disabilities are questions which were settled by the findings of fact made by the full Commission to which no exceptions were entered.

In the light of these facts we are compelled to affirm. However, it must be understood that our affirmance is exclusively on procedural grounds. Specifically, we do not hold or conclude that there is any competent evidence in the record sufficient to support any one of the three decisive findings of fact made by the Commission. If that question was presented to us, the result might be quite different. Since it is not presented, we withhold decision thereon. Hence this opinion is not to be deemed a precedent on any question other than the rules of appellate procedure upon which we base our decision.

In this connection we call attention to the fact that we do not in this opinion establish any new rule. We simply restate, at the risk of needless repetition, rules which have heretofore been established by numerous decisions of this Court, for the guidance of those who prosecute appeals to this Court, especially appeals in compensation cases originating before the Industrial Commission.

The judgment entered in the court below is


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