Whitted v. Palmer-bee Co

• Decision Date: 30 January 1948
• Docket Number: No. 744.,744.
• Citation: 46 S.E.2d 109,228 N.C. 447
• Parties: WHITTED . v. PALMER-BEE CO. et al.
• Court: North Carolina Supreme Court

46 S.E.2d 109

228 N.C. 447

WHITTED .

v.PALMER-BEE CO. et al.

No. 744.

Supreme Court of North Carolina.

Jan. 30, 1948.

SEAWELL, J., dissenting.

Appeal from Superior Court, Forsyth County; Frank M. Armstrong, Judge.

Proceeding under the Workmen's Compensation Act by Mack Whitted, claimant opposed by the Palmer-Bee Company, employer, and the Royal Indemnity Company, insurance carrier.Judgment affirming an award of the Industrial Commission denying compensation, and claimant appeals.

Affirmed.

This is a proceeding for compensation, under the provisions of the North Carolina Workmen's Compensation Act, for an injury by accident arising out of and in the course of the employment of the plaintiff by the defendant, Palmer-Bee Company, on 15 June, 1944.The defendantRoyal Indemnity Company was the insurance carrier of its co-defendant at the time of the accident.

The plaintiff, Mack Whitted, hereinafter called "claimant, " was employed as a machine setter.On the above date, while setting up a machine on the premises of his employer, a piece of slag or metal flew up and struck him in the right eye.The accident was reported to the employer on the day it occurred.The employer reported the accident to the Industrial Commission on the same day.Thereafter, small medical bills were incurred as a result of the injury, which bills were approved for payment by the North Carolina Industrial Commission and paid on 5 July, 1944, by the defendant carrier.

No claim for compensation was filed within twelve months by the claimant with the Industrial Commission for loss of wages because he lost no time from his employment on account of the accident.

On 24 June, 1946, the claimant, through his attorneys, notified the Industrial Commission that he had recently developed a cataract on his right eye and had completely lost his sight in that eye, and requested a hearing.

The opinion of the Commissioner who heard this matter, and whose opinion was adopted by the Full Commission and affirmed by the Superior Court, contains the following statements and findings of fact:

"When this case was heard before the undersigned in Winston-Salem on February the 18th, 1947, it was admitted, and the Commissioner finds it as a fact from the evidence that the claimant is totally blindin his right eye.The Commissioner finds it as a fact from the evidence that this blindness is due to the injury which he sustained while working for the defendant on June the 15th, 1944.The Commissioner further finds that said blindness is due to the injury, and that the injury to the cornea of the eye precipitated a slow developing pathological condition that did not produce the blindness in the claimant's eye until approximately eighteen months after the date of the injury; and, therefore, during this time the claimant had no claim against the defendants because he had lost no time on account of the injury, and for a period of eighteen months while this condition was developing, until is reached the maximum condition, to wit, blindness, he was not entitled to any compensation, and, therefore, did not file any claim.According to the evidence of Dr. Speas, the eye, ear, nose and throat specialist who treated this claimant originally and had examined him on numerous occasions since, testified that the abrasion to the cornea set in motion a condition that spread and formed a cataract that now makes the claimant blind, but that it took approximately eighteen months for this spread from the site of the abrasion to develop the cataract that now causes total blindness."

Whereupon it was held that since no claim was filed with the North Carolina Industrial Commission within twelve months from the date of the accident, the claim is barred by the Statute of Limitations.

The plaintiff appealed to the Superior Court.At the hearing on this appeal, the award of the Commission was affirmed, and the claimant appealed to the Supreme Court.

Deal & Hutchins, of Winston-Salem, for plaintiff, appellant.

Womble, Carlyle, Martin & Sandridge, of Winston-Salem, for defendants, appellees.

DENNY, Justice.

It is contended by the appellees that the findings of fact by the Industrial Commission are conclusive on this appeal.Ordinarily this is true where the facts

found are supported by any competent evidence, Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612;Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97;Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918;Kearns v. Biltwell Chair & Furniture Co., 222 N.C. 438, 23 S.E.2d 310; but where the facts are found by the Commission under a misapprehension of the law, the court is not bound by such findings.McGill v. Lumberton, 215 N.C. 752, 3 S.E.2d 324;Stanley v. HymanMichaels Co., 222 N.C. 257, 22 S.E.2d 570.

The facts are not in dispute.The claimant sustained an injury by accident arising out of and in the course of his employment, on 15 June, 1944, resulting in the total loss of sight in his right eye.The accident was duly reported as required by G.S. § 97-92.The serious nature of the injury was not discovered nor was it discoverable, insofar as the claimant was concerned, until more than twelve months after the date of the accident which caused it.

Therefore, upon these undisputed facts, did the court below reach the correct conclusion of law?In arriving at the answer to this question, we must determine whether or not the report of the accident given by the employer to the Commission, and the subsequent exercise of jurisdiction by the Commission in receiving and approving for payment bills for medical services rendered to the claimant as a result of the injury sustained in the accident, meet the requisites of G.S. § 97-24, the pertinent part of which reads as follows: "The right to compensation under this article shall be forever barred unless a claim be filed with the industrial commission within one year after the accident, and if death results from the accident, unless a claim be filed with the commission within one year thereafter."

The appellees are relying upon Lineberr, v. Town of Mcbane, 218 N.C. 737, 12 S.E.2d 252;Winslow v. Carolina Conference Ass'n, 211 N.C. 571, 191 S.E. 403;Lilly v. Belk Bros., 210 N.C. 735, 188 S.E. 319;Wilson v. E. H. Clement Co., 207 N.C. 541, 177 S.E. 797;Wray v. Carolina Cotton & Woolen Mills, 205 N.C. 782, 172 S.E. 487, and similar cases.On the other hand they insist that Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252andHardison v. Hampton, 203 N.C. 187, 165 S.E. 355, cases upon which the appellant is relying, are not in point.

We think an examination of these and other cases will be helpful in arriving at a proper decision on this appeal.It is clearly evident from a careful examination of the record herein that all parties have acted in good faith.The ultimate result, therefore, must rest upon the respective legal rights of the parties, based upon the undisputed facts disclosed by the record.

In the case of Lineberry v. Town of Mebane, supra, the claimant, on 24 July, 1939, filed with the Industrial Commission a report of an injury alleged to have been sustained by him on 31 May, 1938, while working for the defendant.It was held, "The provisions of Sec. 24, Ch. 120, P.L. 1929(G.S. § 97-24), constitute a condition precedent to the right to compensation, and is not a statute of limitations.* * * If an injured employee fails to file notice of his claim within twelve months after the date he sustains an injury by accident arising out of and in the course of his employment, he has no right to compensation under the express terms of the statute."[218 N.E. 737, 12 S.E.2d 253].

Likewise, in Winslow v. Carolina Conference Ass'n, supra, the first report of the accident which occurred on 4 June, 1934, was filed with the Industrial Commission on 28 June, 1935.Also in Lilly v. Belk Bros., supra, the claimant was injured in January, 1934, and the notice of the injury was not given to the Industrial Commission until July, 1935.

In Wilson v. E. H. Clement Co., supra, the plaintiff suffered an accident in the course of his employment on 15 August, 1929.He employed counsel and filed a claim with the Industrial Commission on 8 Sept., 1930.The hearing Commissioner found "that no written report of the accident by the employee, employer or insurance carrier was filed with the Industrial Commission within one year from the date of the accident, " and denied a recovery.There was an appeal to the full Commission, and it found that no claim for compensation had been filed by anyone on behalf of the claimant within one year after the accident, but reversed the hearing Commissioner on other grounds.The decision of the hearing Commissioner was upheld by this court.

In the case of Wray v. Carolina Cotton & Woolen Mills, supra, an employee had been injured on 28 November, 1930, and the Industrial Commission had not been notified of the injury until 12 April, 1932.A claim by the injured employee for compensation was denied for failure to file his claim within twelve months from the date of the injury.However, the claimant having died as a result of his injury, on 24 August, 1932, his dependents were permitted to file a claim and an award based thereon was affirmed.

In Hardison v. Hampton, supra, the employee was injured on 27 March, 1930.He gave notice in writing to his employer of the accident and resulting injury on 28 March, 1930.He stated that he did not consider his injury serious, but was advised that it might terminate in a permanent rupture.On 25 August, 1930, the employer notified the insurance carrier, and thereupon at the request of the carrier reported the accident and claim for compensation to the Industrial Commission on Form 19, as prescribed by the Commission.Negotiations were entered into between the employee and the carrier.No agreement was reached.The carrier upon inquiry from the Commission suggested that in view of the attitude of the...