Hartsell v. PICKETT COTTON MILLS, INC. , 4 N.C. App. 67 ( 1969 )

165 S.E.2d 792 (1969) 4 N.C. App. 67

Charlie HARTSELL, Jr., Employee, Plaintiff,
v.
PICKETT COTTON MILLS, INC., Employer, and American Mutual Liability Insurance Company, Carrier, Defendants.

No. 6918IC57.

Court of Appeals of North Carolina.

February 26, 1969.

Stephen E. Lawing, High Point, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendants appellees.

CAMPBELL, Judge.

The plaintiff presents two questions for review, both of which stem from the contention that the Commission committed error in failing to set aside and vacate the opinion and award of the Deputy Commissioner on the basis of surprise and excusable neglect. The plaintiff asserts that G.S. § 1-220 is applicable and that if it had been applied, the Commission should have set aside the findings of fact and award and proceeded to take additional evidence pertinent to the issue of mutual mistake of fact with reference to the execution of the agreement and the order approving same.

G.S. § 1-220 provides:

"Mistake, surprise, excusable neglect.— The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding. The clerk may hear and pass upon motions to set aside judgments rendered by him, whether for irregularity or under this section, and an appeal from his order on such motion shall lie to the judge at the next term, who shall hear and pass upon such motion de novo: Provided, however, nothing in this section shall be construed to affect the rights of innocent purchasers for value in foreclosure proceedings where personal service is obtained."

This statute is not applicable to proceedings before the Commission, because "(t)he Industrial Commission is not a court of general jurisdiction. It has no jurisdiction except that conferred upon it by statute." (citation omitted) Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548.

There is no merit in the plaintiff's position. This proceeding was instituted by the plaintiff for the purpose of setting aside the agreement on the ground of mutual mistake of fact. On 22 and 23 May 1968 a hearing was held and the plaintiff was given every opportunity to present his evidence. Under date of 6 February 1968 the Secretary of the Commission advised the plaintiff that if an agreement could not be reached for the submission "of the report of the Veterans Administration doctor as his testimony, you may move on February 14 that this case be reset later in Durham to permit you to offer additional medical evidence." However, neither the plaintiff nor defendants made a motion before the Deputy Commissioner to reset the hearing in Greensboro, Durham or elsewhere in order to take additional medical testimony. Although the defendants' attorney suggested on two occasions that he might desire a hearing in Greensboro in order to take the testimony of Dr. Ames, no motion to that effect was ever made, On the second such occasion, the plaintiff's attorney stated his opposition as follows: "* * * I don't see that Dr. Ames' testimony is going to be necessary at all." Therefore, the plaintiff, who opposed the taking of Dr. Ames' testimony in Greensboro, is not in a position now to say that he was in anyway surprised when the defendants took no further action and permitted the Deputy Commissioner to go ahead and file his findings of fact and award. Certainly, the Commission did not abuse any discretion in refusing to permit the case to be reopened and the award set aside and further hearings conducted.

The evidence adduced in this record clearly supports the findings of fact of the Commission and the conclusions of law based thereon.

More than a year elapsed between plaintiff's injury and the consummation of the agreement. During all of this time the plaintiff complained of back trouble, and he was still complaining when he signed the agreement. In Caudill v. Manufacturing Co., 258 N.C. 99, 128 S.E.2d 128, which is a stronger case for the plaintiff than the instant case, the Supreme Court stated:

"A compromise is essentially an adjustment and settlement of differences. If there are no differences or uncertainties there is no reason for compromise. The law permits compromise settlements between employers and employees who are bound by and subject to the Workmen's Compensation Act, provided they are submitted to and approved by the Industrial Commission. G.S. § 97-17. The law thus undertakes to protect the rights of the employee in contracting with respect to his injuries. The presumption is that the Industrial Commission approves compromises only after a full investigation and a determination that the settlement is fair and just. In the instant case it is clear that the parties were contracting with reference to future uncertainties and were taking their chances as to future developments, relapses and complications, or lack thereof. If not, why the compromise and release? The nature and extent of the injury were known. These had been explored and discovered by surgery. Remedial action had been taken. The plaintiff was ``pressuring' for a settlement. The doctor gave a rating of 40 per cent disability and advised that it was a minimum rating and it was too early to give a permanent rating. The doctor stated that the abscess and osteomylitis which developed later were undiagnosable at the time he made the rating. His opinion, given at the hearing, that he had made a mistake was, as he said, ``in retrospect.' He stated that the abscess and osteomylitis probably did exist in October 1958 and probably had been there in a latent state. They were only consequences of a known injury and developed after the release was executed. There is no competent evidence that they were ``facts' at the time the compromise settlement was made and approved. The parties contracted with respect to such consequences. The mistake disclosed by this record is not such as will enable a court of equity to set aside a release."

The opinion and award of the Commission is

Affirmed.

BROCK and MORRIS, JJ., concur.