McCulloh v. Catawba College , 266 N.C. 513 ( 1966 )

146 S.E.2d 467 (1966) 266 N.C. 513

Mrs. Amy McCULLOH, Widow and Administratrix of the Estate of John L. McCulloh, Deceased,
v.
CATAWBA COLLEGE and Employers Mutual Casualty Company.

No. 615.

Supreme Court of North Carolina.

February 4, 1966.

Spry, Hamrick & Doughton and W. Scott Buck, Winston-Salem, for plaintiff appellant.

Nelson Woodson and Max Busby, Salisbury, for defendant appellees.

SHARP, Justice.

The first question to be considered is whether, under the facts presented, the judge had authority to grant defendants' motion for a rehearing on the grounds of newly discovered evidence.

After an appeal from an award of the Industrial Commission has been duly docketed in the Superior Court, the judge "has the power in a proper case to order a rehearing of the proceeding by the Industrial Commission on the ground of newly discovered evidence, and to that end to remand the proceeding to the commission." Byrd v. Gloucester Lumber Co., 207 N.C. 253, 255, 176 S.E. 572, 573. (Italics ours.) Accord, Moore v. Superior Stone Co., 251 N.C. 69, 110 S.E.2d 459. The burden is upon the applicant for such a rehearing to rebut the presumption that the award is correct and that there has been a lack of due diligence. He makes out "a proper case" for the granting of a new hearing upon the ground of newly discovered evidence only when it appears by affidavit:

"(1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant; (4) that due diligence has been used and the means employed, or that there has been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail." Johnson v. Seaboard Air Line R.R., 163 N.C. 431, 453, 79 S.E. 690, 699.

Here, defendants have failed to meet requirements (4), (6), and (7) above. Dr. Rendleman had given his opinion as to the percentage of McCulloh's disability at the September 1963 hearing. This evidence had been transcribed and was available to defendants' regular counsel when Dr. Davis testified at the hearing in Winston-Salem in February 1964. At that time, counsel had every opportunity to question him on all aspects of plaintiff's claim, but Dr. Davis was not asked for his opinion as to the degree of McCulloh's permanent disability. Furthermore, the opinion which Dr. Davis expressed in his letter, that McCulloh had only a 25% disability in his left extremities, merely contradicts Dr. Rendleman's opinion that the disability was 60% and 100% respectively. Finally, Dr. Davis' opinion is not evidence of such a nature as to show that on another hearing a different result would probably be reached so that "right will prevail." Since the Commission, the ultimate fact-finding body in this case, considered Dr. Davis' letter before it denied defendants' motion based upon it, there is scant reason to believe that a different result would probably be reached if a rehearing were granted. Moore v. Superior Stone Co., supra.

Before an applicant who moves for a new trial upon the grounds of newly discovered evidence may invoke the discretionary power of the Superior Court, he must meet the seven requirements set out in Johnson v. Seaboard Air Line R.R., supra. Moore v. Superior Stone Co., supra; Sanger v. Gattis, 221 N.C. 203, 19 S.E.2d 625; Bullock v. Williams, 213 N.C. 320, 195 S.E. 791; Byrd v. Gloucester Lumber Co., supra; Crane v. Carswell, 204 N.C. 571, 169 S.E. 160. We conclude, therefore, that the Superior Court was without jurisdiction to allow defendants' motion and that the commission's denial of it may not be held for error. The rules of the Industrial Commission (adopted under G.S. § 97-80) "relative to the introduction of new evidence at a review by the full Commission, are in accord with the decisions of this court as to granting new trials for newly discovered evidence." Tindall v. American Furniture Co., 216 N.C. 306, 311, 4 S.E.2d 894, 896. Accord, Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857; Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799.

The next question is: Did the judge err in refusing to sign the judgment tendered by plaintiff? The answer is YES.

The Commission's findings of fact that the accident on June 19, 1962, caused deceased to sustain a 60% permanent loss of the use of his left arm and a 100% loss of the use of his left leg are indubitably supported by the testimony of Dr. Rendleman. Therefore, this finding of fact, the basis of defendants' first exception on their appeal from the Full Commission to the Superior Court, is binding upon the Superior Court and upon us. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747. Defendants' second exception, "that said order has no basis in law and is contrary to law," is broadside. It presents only the question whether the facts found support the judgment. Worsley v. S. & W. Rendering Co. and Sugg v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467.

McCulloh's right, under G.S. § 97-29, to compensation "for indeterminate weeks" as a result of his fall on June 19, 1962, had been conceded by defendants, who had paid compensation for 24 of the 29 weeks which elapsed between his fall and his death. Compensation which accrues under G.S. § 97-29 during the lifetime of an injured worker but is unpaid at his death becomes an asset of his estate. Inman v. Meares, 247 N.C. 661, 101 S.E.2d 692. The award of compensation at $35.00 per week to the plaintiff as administratrix of McCulloh during the period between his injury and his death, with credit for the amount paid to him during his lifetime, is supported both by unchallenged findings of fact and by the law.

Under G.S. § 97-31(13), (15), and (19), McCulloh was entitled to compensation for a total of 332 weeks for the loss of use of his left arm and leg. G.S. § 97-37 provides that when an employee who is entitled to compensation for an injury covered by G.S. § 97-31 dies from any other cause than the injury for which he is entitled to compensation, payment of the unpaid balance of compensation shall be made first "to the surviving whole dependents." Plaintiff, as his widow and sole dependent, was entitled to the full compensation since none had been paid decedent.

The judgment of the court below is vacated, and the cause is remanded for entry of judgment overruling defendants' exceptions and affirming the award of the Full Commission.

Error and remanded.