Bailey v. North Carolina Dept. of Mental Health

159 S.E.2d 28 (1968)

272 N.C. 680

Cullen Bunn BAILEY, Jr. v. NORTH CAROLINA DEPARTMENT OF MENTAL HEALTH.

No. 522.

Supreme Court of North Carolina.

February 2, 1968.

*30 Douglas F. DeBank, Raleigh, for plaintiff.

Atty. Gen. T. W. Bruton and Staff Atty. L. Philip Covington, Raleigh, for defendant.

BRANCH, Justice.

G.S. § 143-291 provides for payment of damages for personal injuries sustained by any person "as a result of a negligent act of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, * * * under circumstances where the state of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina. If the Commission finds that there was such negligence on the part of an officer, employee, * * * which was the proximate cause of the injury and that there was no contributory negligence on the part of claimant * * * the Commission shall determine the amount of damages which the claimant is entitled to be paid * * * but in no event shall the amount of damages awarded exceed the sum of ten thousand dollars ($10,000.00)." (The 1965 legislature increased the amount of possible recovery to $12,000.00, effective July 1, 1965, and the 1967 legislature increased the amount to $15,000.00, effective July 1, 1967.)

G.S. § 143-293, which governs appeals from the Industrial Commission to Superior Court and the Supreme Court, in part provides:

"* * * Such appeal shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them * * *. Either party may appeal from the decision of the superior court to the Supreme Court as in ordinary civil actions."

The Industrial Commission's findings of fact are conclusive on appeal when supported by competent evidence, except for jurisdictional findings. This is true, even though there is evidence which *31 would support findings to the contrary. English Mica Co. v. Avery County Board of Education, 246 N.C. 714, 100 S.E.2d 72; Nello L. Teer Co. v. North Carolina State Highway Commission, 265 N.C. 1, 143 S.E.2d 247. However, where facts are found or where the Commission fails to find facts under a misapprehension of law, the court will, where the ends of justice require, remand the cause so that the evidence may be considered in its true legal light. Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570.

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. 58 Am.Jur., Workmen's Compensation, section 530."

The crucial findings of fact and conclusions of law by the hearing commissioner and adopted by the Full Commission are:

Finding of Fact: "8. That there is nothing in the testimony at the hearing to indicate the name of the State employee or employees that know anything about what caused the plaintiff's injury." Conclusion of Law: "Since there is no showing in the record that a State employee was present or had any knowledge of the injury sustained by the plaintiff, it is not necessary to go into the question of negligence or contributory negligence."

The uncontradicted testimony indicates that while claimant was a patient at Dorothea Dix Hospital on 3 December 1963, he was given a shock treatment resulting in injury. In this connection the record reveals testimony by claimant as follows:

"Q. When was the next time after that that you again received an electric shock treatment? A. The evening of December 3, 1963. They gave me one in the evening instead of the regular time in the morning. Q. Who administered that shock treatment? A. Dr. Frierson, I understand his name is." "I recall the name of some of the attendants at the time I received the shock treatmentMr. Smith and Mr. Stewart."

A careful examination of the record compels the conclusion that this finding of fact made by the hearing commissioner, which was adopted and affirmed by the full Commission, was not supported by the evidence, and the conclusion of law and decision based on the finding was not justified. Upon reaching this conclusion it logically follows that the cause should be remanded for appropriate findings as to whether there was a negligent act of any named officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency, or authority which was the proximate cause of claimant's injury, and whether claimant was guilty of contributory negligence.

"Specific findings of fact by the Industrial Commission are required. These must cover the crucial questions of fact upon which plaintiff's right to compensation depends. (Citations). Otherwise, this Court cannot determine whether an adequate basis exists, either in fact or in law, for the ultimate finding * * *." Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596.

When the findings are insufficient to enable the court to determine the rights of the parties, the case must be remanded to the Commission for proper findings. *32 Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747.

Here the findings of fact are insufficient for a proper determination of the questions raised, and the judge of superior court correctly remanded the cause to the Industrial Commission. However, we note that this order provides:

"* * * that this cause is herewith remanded to the North Carolina Industrial Commission for such rehearing as may be necessary to conform the findings of fact and conclusions of law previously determined with the evidence presently of record, and to make such additional findings of fact and conclusions of law as may be deemed necessary by any additional evidence heard upon rehearing."

Ordinarily, the limited authority of the reviewing court does not permit the trial judge to order remand of the cause for the taking of additional evidence. However, the judge of superior court may remand a cause to the Industrial Commission on ground of newly discovered evidence in a proper case, and such proper case is made out only when it appears by affidavits:

"(1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant; (4) that due diligence has been used and the means employed, or that there has been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail." McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467; Johnson v. Seaboard Air Line R. R., 163 N.C. 431, 453, 79 S.E. 690, 699.

This discretionary power can be invoked only upon the showing of the above requirements, and without such showing the court is without jurisdiction to remand for rehearing on ground of newly discovered evidence. McCulloh v. Catawba College, supra. Further, Industrial Commission, in a proper case, may grant a rehearing and hear additional evidence. This is true even though this Court recognizes that a party to a compensation case is not entitled to try his case "piecemeal." (For a full discussion of the power of the Industrial Commission relative to rehearings, see Hall v. Thomason Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857). In the instant case the Court, ex mero motu, without motion or affidavit showing any of the listed requirements, remanded the case and erroneously ordered a rehearing "to make such additional findings of fact and conclusions of law as may be deemed necessary by any additional evidence heard upon rehearing." (Emphasis ours)

The judge of superior court also exceeded his authority when he concluded: "That the Chairman and the Full Commission erred, as a matter of law, in failing to find that Dr. William Frierson was present and administered the shock treatment to the plaintiff on December 3, 1963; * * *"

Again, the judge did not confine himself to considering whether there was evidence to support a finding or whether the finding justified a legal conclusion. Rather, he entered an ultimate finding and, in effect, ordered the Commission to so find. This is error. Henry v. A. C. Lawrence Leather Co., supra.

The judgment is vacated and the cause is remanded to the Superior Court of Wake County with direction that it be remanded to the North Carolina Industrial Commission for further consideration, to the end that the Commission may proceed with findings of fact and a determination of the rights of the parties in accord with the principles herein enunciated.

Error and remanded.