Thompson v. Smith

• Decision Date: 18 October 1911
• Citation: 156 N.C. 345,72 S.E. 379
• Court: North Carolina Supreme Court
• Parties: THOMPSON v. SMITH et al.

72 S.E. 379

156 N.C. 345

THOMPSON

v.SMITH et al.

Supreme Court of North Carolina.

Oct. 18, 1911.

Reference (§ 100^*)—Findings of Fact and Law—Review.

Where exceptions are taken to the referee's findings of fact and law, the superior court must consider the evidence, and give its own conclusion on the facts and law; and it is error to merely consider the evidence to ascertain whether there is any evidence to sustain the findings.

[Ed. Note.—For other cases, see Reference, Cent. Dig. §§ 164-166; Dec. Dig. § 100.*]

Appeal from Superior Court, Wake County; Whedbee, Judge.

Action by Fannie H. Thompson against Marcellus Smith and another, administrators. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

J. H. Fleming, for appellant.

B. M. Gatling, for appellees.

WALKER, J. We have in this case a voluminous record and elaborate briefs upon several very interesting questions, involving the merits of the cause, and yet we must remand it to the court below for another hearing, because of what the learned and able judge said at the time he heard the case, indicating that he would not, independently as a judge, examine the evidence for the purpose of forming a conclusion as to the facts, where the findings of the referee had been the subject of exception, but only for the pur pose of ascertaining if there was any evidence to sustain the referee's findings, and if there was he would adopt those findings as his own.

We do not consider this to be the rule in such cases. The party excepts to the finding of the referee, when one of fact, because he impliedly says it is not backed by a preponderance of the evidence, and if his exception is overruled by the referee he appeals to the judge. What is the use of appealing, if the judge can simply decide that the exception is not well taken, if there is any evidence to support the finding? It is for him to say, of course, not if there is any evidence, but if all the evidence adduced by the party, upon whom rests the burden of proof, is, by its greater weight, sufficient to establish the fact, which is essential to his success. The learned judge might as well have.aid that he would sustain the conclusions of law, if there was any authority to support them. But the rule adopted by his honor does not apply to the superior court, but only to this court. We have said that, where the evidence has been considered by the referee and by the judge, upon exceptions to the referee's findings, we will not review the judge's conclusions as to them, because the appellant has had two chances; and when two minds, one at least, and perhaps both, professionally trained and accustomed to weigh evidence, and to compare and balance probabilities as to its weight, arrive at the same conclusion, there is a strong presumption in favor of its correctness;...