Willingham v. Bryan Rock & Sand Co.

82 S.E.2d 68 (1954)

240 N.C. 281

WILLINGHAM v. BRYAN ROCK & SAND CO. et al.

No. 378.

Supreme Court of North Carolina.

May 19, 1954.

*72 T. G. Furr, Salisbury, for plaintiff appellee.

R. E. Wardlow, Pierce & Blakeney, Charlotte, for defendants Bryan Rock & Sand Co. and Textile Ins. Co., appellees.

Linn & Shuford, Hudson & Hudson, Salisbury, for defendant Salisbury Granite Industries, Inc., appellant.

*73 WINBORNE, Justice.

At the outset let it be noted that no appeal was taken from the ruling of the North Carolina Industrial Commission that, upon the facts found by the hearing commissioner, and adopted by the Commission, it follows as a matter of law that the defendant Bryan Rock & Sand Company and its insurance carrier must be discharged from liability to plaintiff on his claim filed against it, and the claim be denied, and dismissed. So, this ruling is not presented for decision on this appeal. Indeed, attorney for claimant in brief filed here does not take issue with the ruling.

Now turning to appeal of Salisbury Granite Industries, Inc.: It is stated in brief of this appellant that the questions involved are these:

"I. Was notice given to and claim filed against the defendant, Salisbury Granite Industries, Inc., as required and contemplated by Section 97-58 of the General Statutes of North Carolina?

"II. If so, is there sufficient competent evidence in the record to support the award?"

These questions purport to be predicated upon assignments of error stated as follows: (1) "That the court erred in affirming and sustaining the award of the Industrial Commission for that no claim was filed against the defendant Salisbury Granite Industries, Inc., as required and contemplated by G.S. 97-58, and for that there is no evidence in the record to sustain the award, Exception No. 1, which is the defendant Salisbury Granite Industries, Inc.'s Assignment of Error No. 1 (R. pp 53, 54, 55,61,62,63)."

(2) "That the court erred in signing the judgment as appears in the record for that no claim was filed against the defendant Salisbury Granite Industries, Inc., as required and contemplated by G.S. 97-58, and for that there is no evidence in the record to sustain the award and the judgment of the court, Exception No. 2, which is the defendant Salisbury Granite Industries Inc.'s Assignment of Error No. 2 (R. pp 53, 54, 55, 61, 62, 63)."

However, the record and case on appeal failed to show exceptions as bases for these assignments. The exceptions to the award of the Full Commission are insufficient to present these matters to the Superior Court, and the exceptions to the judgment of the Superior Court are insufficient to present them to this Court. See Worsley v. S. & W. Rendering Co. (Sugg v. S. & W. Rendering Co.), 239 N.C. 547, 80 S.E.2d 467, and Beaver v. Crawford Paint Co., N.C., 82 S.E.2d 113.

In the Worsley case, Barnhill, C. J., recently restated the rules of procedure as approved in decisions of this Court as to appeals in Workmen's Compensation cases, (1) from the North Carolina Industrial Commission to the Superior Court, and (2) from the Superior Court to the Supreme Court. And in the Weaver case, supra, Denny, J., amplifies the subject. What is so recently said in these cases is applicable to case in hand, and need not be rehashed. The decisions of this Court uniformly hold that when it is claimed that findings of fact made by the Industrial Commission are not supported by the evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged error.

Hence on an appeal "for errors in findings of fact unsupported by any evidence in the record, and for errors of law in the review of the award by the Full Commission", as in the case in hand, the exceptions are too general, and, therefore, are insufficient to challenge the sufficiency of the evidence to support the findings of the Commission or any one of them. Thus the appeal to the Superior Court presented for review the single question whether the facts found by the Commission support the decision and award. See Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; also Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, and cases there cited.

*74 And on the appeal to Supreme Court the exceptions to the signing and rendition of the judgment of Superior Court raise only the question as to whether error in matters of law appear upon the face of the record. See Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited. See also Town of Burnsville v. Boone, supra, and cases cited. Indeed, error is not made to appear.

And while it may be doubted that the North Carolina Industrial Commission had authority under the North Carolina Workmen's Compensation Act, by which it was created, to make the Salisbury Granite Industries, Inc., a party defendant to the proceeding as originally instituted, since at that time claimant had not filed nor asserted claim against it. But be that as it may, the Salisbury Granite Industries, Inc., responding to notice of hearing to be held in Salisbury on 9 January, 1952, appeared at the time and place of the hearing, and stipulated that it was subject to the Workmen's Compensation Act, and joined in the hearing on the question as to whether its employment of Tom Willingham was his last injurious exposure to the hazard of silicosis within the meaning of G.S. § 97-57. This amounted to a general appearance whereby it submitted itself to the jurisdiction of the Commission. And there is presented to this Court no exception in this respect. See In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818.

Moreover, the stipulation by all parties, entered before and after the hearing before the Full Commission establishing the facts that Tom Willingham was dead, and that "his widow is now a proper party to this action as a claimant claiming compensation for his death which is alleged to have resulted from silicosis" constitutes a waiver of any procedural defect in respect to filing of her claim. G.S. § 97-58. And it is on her claim that award is made.

Finally, it may be noted that if the Salisbury Granite Industries, Inc., had had Tom Willingham examined as it was authorized to do under provisions of G.S. § 97-60, no doubt it would have ascertained before employing him that he was affected with silicosis in the third stage. But having employed him, it is not amiss to say that a reading of the evidence offered on the hearing at Salisbury on 9 January, 1952, is sufficient to admit of the finding of fact made by the Industrial Commission in respect to his injurious exposure to silica or granite dust while employed by Salisbury Granite Industries, Inc.

For reasons stated, the judgment below is

Affirmed.