In Re Hayes., 329.

• Decision Date: 27 January 1931
• Docket Number: No. 329.,329.
• Citation: 200 N.C. 133,156 S.E. 791
• Parties: In re HAYES.
• Court: North Carolina Supreme Court

156 S.E. 791

(200 N. C. 133)

In re HAYES.

No. 329.

Supreme Court of North Carolina.

Jan. 27, 1931.

Certiorari from Superior Court, Orange County; Harris, Judge.

Application for writ of habeas corpus by Dr. R. B. Hayes. To review the judgment of Harris, Judge at Chambers, remanding petitioner to the custody of the sheriff, petitioner brings certiorari as a substitute for an appeal.

Affirmed.

It appears from the petition for the writ of certiorari filed in this court that on March 5, 1930, the petitioner, Dr. R. B. Hayes, was arrested and held in custody by the sheriff of Orange county, pursuant to an order made by the chairman of the North Carolina Industrial Commission on March 3. 1930; that thereafter the said Dr. R. B. Hayes applied to the Honorable W. C. Harris, judge of the superior court, for a writ of habeas corpus, alleging in his petition for said writ that he was unlawfully imprisoned and restrained of his liberty by the sheriff of Orange county, for that the order by virtue of which he was arrested and held in custody by the said sheriff was without authority of law, and therefore void; and that at the hearing on the return of the writ of habeas corpus, issued by the Honorable W. C. Harris, his prayer that he be discharged from custody was denied, and he was remanded to the custody of the sheriff of Orange county. The petitioner prays this court to issue a writ of certiorari directing that the proceedings in which the judgment denying his prayer that he be discharged from custody, and remanding him to the custody of the sheriff of Orange county, was rendered, be certified to this court for a review of said judgment to determine whether or not there is error in said judgment as contended by the petitioner.

It appears from the return made to the writ of certiorari issued by this court, pursuant to the petition therefor, that the order by virtue of which the petitioner was arrested and held in custody was made by the chairman of the North Carolina Industrial Commission, at a hearing before said chairman on March 3, 1930, of a cause pending before said commission, entitled, "J. O. Thompson, Employee, vs. E. H. Clements Co., Employer, and U. S. Casualty Company, Carrier." The said cause involved the claim of the employee to compensation to be paid by the employer, and its carrier for injuries sustained by the employee, as the result of an accident, in the course of his employment, under the provisions of the North Carolina Workmen's Compensation Act (Pub. Laws 1929, c. 120). Upon the admissions made by the parties to the cause, and entered in the record of the hearing, the commissioner ruled that there was hut one question to be decided by him, to wit: Whether or not the condition of the claimant at the date of the hearing was the result of the accident and resulting injury which occurred on October 19; 1929.

At said hearing, Dr. R. B. Hayes, the physician who had attended the employee at the time he was injured, and who had filed with the commission on November 13, 1929, his report as such attending physician, was present as a witness for the claimant. After he had been sworn, and had testified both on direct and cross examination, Dr. Hayes was examined by the chairman of the North Carolina Industrial Commission, who presided at the hearing. The record of this examination is as follows: — "Q. Have you an opinion as to whether or not the blow he (the claimant) "received on October 19th would have produced the paralytic stroke on January 12th? A. I have an opinion, but will not testify unless I get expert compensation.

"Q. What is this opinion? A. Do you qualify me as an expert?

"Q. No, Sir, it is not up to me to qualify you. I can only pass upon your qualifications when I know them. I only know you are a practicing physician up to this time. A. Then I decline to express an opinion.

"Q. Doctor, I again ask you to answer the question, and give me your opinion as to whether or not the claimant's present condition is the result of the accident and injury on October 19th? A. I decline to answer the question.

"Q. Dr. Hayes, I ask you again to answer the question, giving your opinion as to whether or not this man's condition is the result of the accident and injury on October 19th? A. I decline to answer the question.

"Q. Dr. Hayes, I have no desire to do anything that would hurt or injure you, and I hesitate to enter any judgment here that will embarrass you but I must insist that you render proper respect to me as a Court, and answer the question propounded. The question which has been asked you is the only question to be determined by the Industrial Commission at this hearing, and upon it depends whether or not this claimant will be awarded or denied compensation. I want to be entirely respectful and courteous to you, and I hope you will not let anything personal influence you in your decision to answer this question. A. I still decline to answer the question.

"Q. Now, Dr. Hayes, I want to say to you that if there is anything personal which has entered into your refusal to answer this question, I hope you will put aside any personal feeling and consider me for the time being as a Court, and entitled to the respect due to a Court, and I call upon you again to answer the question propounded by the Court, and in this connection I want to say to you that this hearing was had in the bedroom and at the bed-side of the claimant who was your patient, because he was unable to attend Court, and because he is in such condition that he needs any compensation that may be due him, and that the question of compensation can not be decided until the question which has been propounded to you has been answered and passed upon by the Commission. A. It is my understanding that a man's opinion is his personal property, and is to be paid for at his price. An expert must be paid expert fees. That is my understanding. You have the right to order me to examine the man, and ask my opinion as an expert.

"Q. Doctor, before entering any judgment, I want to say to you that if you have any doubt about your rights, and desire to advise with counsel, there are two good lawyers present, one representing the plaintiff, and the other the defendants, who will tell you what you should do under the circumstances. A. When I seek expert advice, I expect to pay for it, and I prefer to consult my own lawyer."

At the close of this examination, the commissioner found the following facts:

"1. That Dr. R. B. Hayes is the physician who first attended the claimant after his injury, and continued to treat him as his physician until he returned to work nine days later.

"2. That Dr. R. B. Hayes was duly and regularly subpoenaed as a witness to attend the hearing at the residence of the claimant, J. O. Thompson, on Monday, March 3rd, at 3 o'clock, P. M. That in response to said subpoena Dr. Hayes did appear in person, and was duly sworn as a witness on behalf of the plaintiff.

"3. That Dr. R. B. Hayes deliberately and defiantly refused to answer the question propounded by the Commissioner, as to whether or not the present condition of the claimant is the result of the accident and Injury for which the said Dr. Hayes treated the claimant.

"4. That the said Dr. R. B. Hayes by his refusal to answer the question propounded by the Commissioner meant and intended to show his contempt for the Court."

Upon the foregoing facts found by the commissioner and entered in the record, it was "ordered and adjudged by the Commissioner that Dr. R. B. Hayes be confined in the common jail of Orange County, North Carolina, for a period of ten days, or until such time as he shall decide to answer the question propounded by the Court. Execution to Issue on 5 March, 1930."

Pursuant to a commitment issued by the chairman of the North Carolina Industrial Commission, in accordance with the foregoing order, Dr. R. nion, that the said petitioner is not entitled to be discharged from the imprisonment to which he has been committed by the Chairman of the North Carolina Industrial Commission, for contempt, it is now, thereforeB. Hayes was arrested and held in custody by the sheriff of Orange county.

On the return to the writ of habeas corpus issued by Judge Harris, judgment was rendered as follows:

"In the Matter of Dr. R. B. Haye This cause coming on to be heard upon petition for writ of Habeas Corpus, duly made and filed herein, and the same being heard, and the Court being of the opi, ordered and adjudged that the petition be and the same is hereby dismissed, and the petitioner will be remanded into custody. W. C. Harris, Judge Holding the Courts of 10th Judicial District of N. C."

On the return to the writ of certiorari, the petitioner, Dr. R. B. Hayes, contends that there is error in the foregoing order and judgment.

Fuller, Reade & Fuller, of Durham, and Gattis & Gattis, of Hillsboro, for petitioner.

Dennis G. Brummitt, Atty. Gen., and Walter D. Siler, Asst. Atty. Gen., for respondent.

CONNOR, J.

The petitioner, Dr. R. B. Hayes, was correctly advised by his counsel that no appeal would lie from the judgment at the hearing on the return of the writ of habeas corpus. The only remedy available to the petitioner for a review by this court of the judgment, in order to determine its validity, was a petition for a writ of certiorari, which in proper cases is a substitute for an appeal. C. S. § 630; State v. Edwards, 192 N. C. 321, 135 S. E. 37'; In re McCade, 183 N. C. 242, 111 S. E. 3; In re Croom, 175 N. C. 455, 95 S. E. 903; In re Holley...