Byers v. North Carolina State Highway Commission

• Decision Date: 11 December 1968
• Docket Number: No. 6823SC241,6823SC241
• Citation: 164 S.E.2d 535,3 N.C.App. 139
• Parties: Mrs. Esther BYERS, Widow and Administratrix of the Estate of Weaver Byers, Deceased Employee v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Employer, Self-Insurer, Standard Concrete Products Company, Third-Party Tort-Feasor.
• Court: North Carolina Court of Appeals

Page 535

164 S.E.2d 535

3 N.C.App. 139

Mrs. Esther BYERS, Widow and Administratrix of the Estate of Weaver Byers, Deceased Employee v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Employer Self-Insurer, Standard Concrete Products Company Third-Party Tort-Feasor.

No. 6823SC241.

Court of Appeals of North Carolina.

Dec. 11, 1968.

Certiorari Allowed Jan. 31, 1969.

Hayes & Hayes by Kyle Hayes, North Wilkesboro, for plaintiff appellee.

FRANK M. PARKER, Judge.

In this case the appeal from the order of the Industrial Commission was taken prior to 1 October 1967 and accordingly properly lay to the superior court. Had the appeal been taken on or after 1 October 1967, it would have come directly to the Court of Appeals. G.S. § 97--86, as amended by Chap. 669, 1967 Session Laws. In either case the appellate court, which was the superior court in this case, has jurisdiction to review only for errors of law. Brice v. Robertson House Moving Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439. If the findings of fact of the Industrial Commission in a proceeding over which it has jurisdiction are supported by competent evidence and are determinative of all of the questions at issue in the proceeding, the court on appeal must accept such findings as true and merely determine whether they justify the legal conclusions and the decision made by the Commission. In no event may the superior court or this Court consider the evidence which was introduced in the proceedings before the Industrial Commission for the purpose of making new findings of fact for itself. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747. A fortiori the appellate court may not receive or consider new evidence not introduced in the hearing before the Commission. The scope of review is limited to the record as certified by the Industrial Commission and to the questions of law therein presented. Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432. If the findings of fact made by the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the Commission for proper findings. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706. Even in such cases, however, ordinarily the limited authority of the reviewing court does not permit it to order remand of the case for the taking of additional evidence. Bailey v. North Carolina Dept. of Mental Health, 272 N.C. 680, 159 S.E.2d 28. The appellate court may remand a cause to the Industrial Commission on the ground of newly discovered evidence only when a proper case is made to appear by affidavit meeting the seven requirements set out in Johnson v. Seaboard Air Line R.R., 163 N.C. 431, 453, 79 S.E. 690, 699. McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467. No affidavit and no such showing has been presented in the present case.

In the light of the foregoing well-established principles it is apparent that the judgment of the superior court here appealed from was erroneous. Not only did the judge make new findings of fact on the basis of the record certified by the Industrial Commission for appellate review, but he allowed introduction into the record of entirely new evidence, in the form of a stipulation, as to the existence of three older children of the deceased employee who did not share in the workmen's compensation award but who were heirs at law of the deceased. On the basis of this new evidence, introduced for the first time in the appellate review hearing in the superior court, the judge found as a fact that the dependents of the deceased employee under the Workmen's Compensation Act are not the same in this case as the distributees of the deceased. On this finding the court concluded as a matter of law that the provisions of the North Carolina Wrongful Death Statute, G.S. § 28--173, are controlling over the provisions of the Workmen's Compensation Act, G.S., Chap. 97. It is true that for purposes of the North Carolina Workmen's Compensation Act a 'child' is defined to include only persons who at the time of the death of a deceased employee are under eighteen years of age, G.S. § 97--2(12), while our Wrongful Death Statute, G.S. § 28--173, provides that any recovery thereunder shall be distributed under the North Carolina Intestate Succession Act, G.S., Chap. 29, in which no such age limitation appears. The question of a possible conflict in the distributive provisions of the two statutes is an interesting one and has given the courts of other states considerable difficulty when they confronted with similar problems in considering their own statutes. (For cases holding that the provisions of the Wrongful Death Statutes control to the extent that the employer's subrogation rights under Workmen's Compensation Statutes are limited to the portion of the wrongful death recovery which is distributed under the Wrongful Death Statutes to persons who also receive compensation as dependents under the Workmen's Compensation Statutes, see: Doleman v. Levine, 295 U.S. 221, 55 S.Ct. 741, 79 L.Ed. 1402; Holley v. The Manfred Stansfield, D.C., 186 F.Supp. 805; Joel v. Peter-Dale Garage, 206 Minn. 580, 289 N.W. 524; United States Fidelity & Guaranty Co. v. Higdon, 235 Miss. 385, 109 So.2d 329; Buzynski v. County of Knox, 159 Me. 52, 188 A.2d 270; Prudential Insurance Co. of America v. Laval, 131 N.J.Eq. 23, 23 A.2d 908; In Re Zirpola v. T & E Casselman, Inc., 237 N.Y. 367, 143 N.E. 222. For cases holding that the provisions of the Workmen's Compensation Statutes control, see: In Re Shields' Estate 320 Ill.App. 522, 51 N.E.2d 816; Gall v. Robertson, 10 Wis.2d 594, 103 N.W.2d 903.)

However, in the case before us the question was not presented for decision on the record before the Industrial Commission and was not properly before the superior court when this case came before it for appellate review. Nor is the question at present properly before this Court and accordingly we refrain from expressing any opinion on it, other than to refer to the following language in the opinion by Chief Justice Denny in Cox v. Pitt County Transportation Co., 259 N.C. 38, 43, 129 S.E.2d 589, 592:

'(I)t is mandatory under the provisions of the Workmen's Compensation Act that any recovery against a third party by reason of an injury to Or death of an employee subject to the Act, the proceeds received from such settlement with or judgment against the third party, Shall be disbursed according to the provisions of the Workmen's Compensation Act.' (Emphasis added.)

Since the superior court had no power to make the new factual finding, the resulting conclusion of law and the judgment insofar as it was based thereon was erroneous.

Appellee further contends that the Highway Commission is barred from sharing in the wrongful death recovery by...