Hatchell v. Cooper , 266 N.C. 345 ( 1966 )

146 S.E.2d 62 (1966) 266 N.C. 345

Luther Dozier HATCHELL, Employee,
v.
John D. COOPER and W. T. Cooper, t/a Cooper's Furniture House, Employer; the Shelby Mutual Insurance Company, Carrier.

No. 536.

Supreme Court of North Carolina.

January 14, 1966.

Emanuel & Emanuel, Raleigh, for plaintiff appellee.

I. Weisner Farmer, Raleigh, for defendant appellants.

SHARP, Justice:

The only exception taken by defendants in the Superior Court is the one which the law implies from the appeal itself. An appeal is an exception to the judgment. Under our decisions, "the effect of an exception to the judgment is only to challenge the correctness of the judgment, and presents the single question whether the facts found are sufficient to support the judgment * * *." Fox v. Cramerton Mills, Inc., 225 N.C. 580, 583-584, 35 S.E.2d 869, 871. Accord, Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467. Defendants concede this rule of appellate procedure. They argue, however, that the judgment is erroneous in that it is "a blanket denial" of their exceptions to the findings and conclusions of the Industrial Commission and that it does not specifically pass upon the sufficiency of the evidence to support them. This contention is without merit.

In Fox v. Cramerton Mills, Inc., supra, the judge "after due consideration of the entire record" and argument of counsel, held that "the award of the North Carolina Industrial Commission be in all respects affirmed." In reviewing this judgment, Devin, J. (later C. J.) speaking for this Court said:

"where upon an appeal from the Industrial Commission the exceptions point out specific assignments of error, the judgment in the superior court thereon properly should overrule or sustain respectively each of the exceptions on matters of law thus designated. We think this practice conducive to more orderly and accurate presentation of appeals brought forward under the Act. The appeal from the Industrial Commission in this case pointed out the particulars in which errors of law were assigned, and the judgment in the superior court merely decreed that the award be in all respects affirmed. Presumably the judge below considered each of the assignments of error and overruled them. In this view we do not hold that a remand is required in this case." Id. at 583, 35 S.E.2d at 871.

In this case, the action of Judge Mallard in expressly overruling each of defendants' exceptions by number eliminates any necessity for indulging in presumptions.

Although the competency and sufficiency of the evidence upon which the Industrial Commission based its findings of fact are not before us for review, we have examined the record. It appears that competent evidence supports all the material findings of fact and that the findings, in turn, support the Commission's award which the Superior Court properly affirmed.

Defendants' motion to remand the case to the Industrial Commission for the taking of additional testimony is not based on newly discovered evidence. They do not contend that they have any such evidence. We apprehend that defendants desire "to mend their licks" by asking the same witnesses additional questions which could just as well have been asked on the original hearing. In addition, they contend that the full Commission should have the opportunity to see and hear this particular claimant before evaluating his testimony. The judge properly denied the motion to remand. Moore v. Superior Stone Co., 251 N.C. 69, 110 S.E.2d 459.

The judgment below is

Affirmed.