Bailey v. North Carolina Dept. of Mental Health, 68101C364

• Decision Date: 23 October 1968
• Docket Number: No. 68101C364,68101C364
• Citation: Bailey v. North Carolina Dept. of Mental Health, 163 S.E.2d 652, 2 N.C.App. 645 (N.C. App. 1968)
• Parties: Cullen Bunn BAILEY, Jr. v. NORTH CAROLINA DEPARTMENT OF MENTAL HEALTH.
• Court: North Carolina Court of Appeals

Page 652

163 S.E.2d 652

2 N.C.App. 645

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

No. 68101C364.

Court of Appeals of North Carolina.

Oct. 23, 1968.

Douglas F. DeBank, Raleigh, for plaintiff appellant.

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

MALLARD, Chief Judge.

Plaintiff contends that the Full Commission committed reversible error in refusing to permit the introduction of additional evidence after this case was remanded by the Supreme Court.

In the opinion of the Supreme Court by Branch, J., (272 N.C. 680, 159 S.E.2d 28), the court said:

'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 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.' Bailey v. Dept. of Mental Health, Supra.

A careful reading of the opinion of the Supreme Court reveals that the findings of fact theretofore found by the hearing commissioner and affirmed by the Full Commission were not supported by the evidence. The judgment rendered thereon was vacated so that the evidence may be considered in its true legal light. The Supreme Court in remanding the case also said:

'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.'

The North Carolina Industrial Commission was to further consider the matter to the end that the Commission might proceed with findings of fact and a determination of the rights of the parties. A trial De novo was not ordered. The Supreme Court did not order a New trial before the Industrial Commission. The Industrial Commission was not directed to take additional evidence, nor was it denied the authority to take additional evidence.

We are of the opinion and so decide that the Industrial Commission could have, upon a proper showing, and in its discretion, ordered additional evidence to have been taken. It did not do so and on this record no abuse of discretion is shown for failing to do so. McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467; Hall v. W. A. Davis Milling Co., 1 N.C.App. 380, 161 S.E.2d 780.

The Legislature has made the procedure in hearings before the Industrial Commission different from the procedures in the Superior Court. In a suit against the State for an alleged tort, the plaintiff cannot complain when the State requires him to follow certain procedural rules before its consent is given to waive its sovereign immunity.

Plaintiff also in his brief, after citing McFarlane v. Wildlife Resources Commission, 244 N.C. 385, 93 S.E.2d 557, asserts and contends that 'had this action against the State of North Carolina been pending and tried in the Superior Court systems of this State, upon remand by the Supreme Court, the case would have begun anew.'

In his contentions, plaintiff overlooks what the Supreme Court did; it Did not reverse a judgment of nonsuit. Plaintiff complains because his case was required to be tried by the same fact finding body on the same evidence. The Legislature required him to submit his controversy to this particular fact finding body, the Industrial Commission. He cannot complain about the 'jury' or fact finding body being selected for him by the State, for if the State had not waived its immunity and provided some tribunal, the plaintiff would have had no forum at all in which to present his claim. Every person similarly situated is required to submit his cause to this same 'jury' or fact finding body.

Plaintiff contends that he should have been permitted to introduce further evidence and, in support thereof, offered to the Industrial Commission an unverified written motion signed by his attorney. In this motion, it is said, among other things:

'In support of this request the Plaintiff would show unto the Commission that at the time of the original hearing on this claim held before J. W. Bean, Chairman of the North Carolina Industrial Commission on May 4th, 1966, there were in fact witnesses present at the trial, completely unbeknown to the Plaintiff, who could have aided substantially in the proof and presentation of the Plaintiff's claim. The Plaintiff and his Counsel knew of these witnesses but were totally unable prior to the trial to determine their residence or whereabouts and were also unable to recognize said witnesses in person. That the Plaintiff and his Counsel therefore did not know that several key witnesses had been subpoenaed by the State and were in fact present in the courtroom on the date of the original hearing.

That the Plaintiff is particularly referring to the presence at said original hearing of Dr. William Frierson, the physician who administered the shock treatment as well as one or two of the people who assisted Dr. Frierson on the date the injury was incurred by the Plaintiff. There people were subpoenaed by the State as witnesses for the State, however, the State did not offer any evidence at the hearing. It is the Plaintiff's contention that these particular witnesses, had their presence been known by the Plaintiff or had they been subjected to cross-examination, would have contributed substantially to the proof of the Plaintiff's claim.'

It is observed that this motion was not sworn to and thus does not comply with even the initial requirement as set out in Bailey v. Dept. of Mental Health, supra, for the admission of Newly discovered evidence. The Supreme Court had reversed the order of the Supeior Court Requiring the taking of additional evidence. We are of the opinion that the plaintiff was not entitled as a matter of law to introduce additional evidence in this case after it was ruled on by the Supreme Court, and that the Industrial Commission did not commit error in refusing to allow plaintiff's motion to offer additional evidence.

There are many differences in procedure in cases brought under the Workmen's Compensation Act and those brought under the State Tort Claims Act. The Workmen's Compensation Act should be liberally construed. Hall v. Milling Co., Supra. The Supreme Court held in Floyd v. Highway Commission, 241 N.C. 461, 85 S.E.2d 703 (1955), with Parker, J. (now C.J.), dissenting, that the State Tort Claims...