Harris v. FRANK L. BLUM CONSTRUCTION COMPANY , 10 N.C. App. 413 ( 1971 )

179 S.E.2d 148 (1971) 10 N.C. App. 413

Hardy H. HARRIS
v.
FRANK L. BLUM CONSTRUCTION COMPANY and Hartford Accident & Indemnity Company.

No. 7121IC9.

Court of Appeals of North Carolina.

February 24, 1971.

Robert M. Bryant, Winston-Salem, for plaintiff appellant.

Hudson, Petree, Stockton, Stockton & Robinson by William F. Maready and John M. Harrington, Winston-Salem, for defendant appellees.

MALLARD, Chief Judge.

Plaintiff contends that the facts contained in paragraph number 7 of the findings of fact of the deputy commissioner and adopted by the Commission are not supported by competent medical testimony. This contention is without merit. The findings are supported by the competent testimony of Dr. de la Torre. It is established law in North Carolina that conflicts in the evidence are to be resolved by the Commission and that findings of fact by the Commission (except jurisdictional facts) are conclusive upon appeal when supported by competent evidence. Anderson v. Lincoln Construction Co., 265 N.C. 431, 144 S.E.2d 272 (1965); West v. Stevens, 6 N.C.App. 152, 169 S.E.2d 517 (1969); Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E. 2d 619 (1968). No jurisdictional facts are at issue herein. The facts found in this case are based on competent evidence and support the conclusions of law and the decision of the Commission. The Court of Appeals is bound thereby. Bailey v. North Carolina Dept. of Mental Health, 272 N.C. 680, 159 S.E.2d 28 (1968); Martin v. Georgia-Pacific Corp., 5 N.C.App. 37, 167 S.E.2d 790 (1969).

Defendants' second assignment of error is that the Commission committed error in denying plaintiff's motion that the cause be reset for hearing for the purpose of taking the testimony of Dr. E. O. Jeffreys.

At the conclusion of the evidence taken before the deputy commissioner, the plaintiff announced that the only other evidence he would offer would be "Dr. Jeffries"; whereupon the following colloquy occurred:

"THE COURT: Are you going to get a report from Dr. Jefferies?

MR. BRYANT: Yes, Your Honor.

THE COURT: Well, then maybe you and Mr. Maready can get together and submit it.

MR. BRYANT: I think so.

MR. MAREADY: That's quite possible, depending on what he says, of course.

THE COURT: All right.

WHEREUPON THIS HEARING WAS CONCLUDED."

In the "opinion and award" by Deputy Commissioner Delbridge, which was filed 17 March 1970, it was stated that the case was heard on 13 January 1970. There is nothing in the record to indicate whether the report of Dr. Jeffreys (or "Jefferies") was offered between the hearing date and the filing date. The next reference in the record to the testimony of Dr. Jeffreys is contained in a motion by the plaintiff to the Commission dated 8 May 1970 asking that the cause be remanded to the "Commissioner" for the purpose of taking the testimony of Dr. Jeffreys. In this motion plaintiff asserts that he had informed the deputy commissioner at the hearing on 13 January 1970 that Dr. Jeffreys had taken X-rays of the plaintiff but would not be able to furnish a report until some time later; that he had requested the commissioner to hold the case in abeyance until Dr. Jeffreys' findings could be taken as evidence; and that he had received a letter addressed to the Commission from Dr. Jeffreys which he attached to the motion. The letter of Dr. Jeffreys is dated 30 April 1970 and reads as follows:

"N. C. Industrial Commission Education Building Raleigh, N. C. Re: Mr. Hardy Harris Gentlemen:

I have examined the above patient, and X-rays were made April 24, 1970.

It is my opinion that this patient's illness is due to the injury which occurred while he was at work.

Sincerely yours, s/ EVERETT O. JEFFREYS Everett O. Jeffreys, M.D."

In his brief plaintiff correctly asserts that the Commission had the power to grant a rehearing of a proceeding before it and in which it has made an award on the grounds of newly discovered evidence. In support of this assertion, he cites Hall v. Thomason Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857 (1965), and Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799 (1935). There is no contention or assertion in plaintiff's motion that the evidence of Dr. Jeffreys was "newly discovered." In fact, plaintiff apparently had been examined by Dr. Jeffreys before the 13 January hearing. However, Dr. Jeffreys' letter, upon which plaintiff bases his motion, appears to be based on an examination of the plaintiff that he made more than a month after the deputy commissioner had denied recovery. The Commission, upon an appeal to it from an opinion and award of the hearing commissioner, had the discretionary authority to receive further evidence regardless of whether it was newly discovered evidence. G.S. § 97-85. We hold that the Commission did not abuse its discretion and did not commit error in denying plaintiff's motion to remand to the hearing commissioner for the purpose of taking the testimony of Dr. Jeffreys.

The record on appeal in this case was docketed in this court on 18 August 1970 and came up for oral argument on 26 January 1971. On 13 January 1971 plaintiff filed a motion requesting that the Court of Appeals grant him a new hearing upon the grounds of newly discovered evidence. This motion is supported by an affidavit dated 23 December 1970 of Dr. Jeffreys in substance stating that in his opinion the left hemiparesis suffered by the plaintiff on 14 July 1969 was caused by a trauma or blow to the back of the head. A motion for a new trial on the grounds of newly discovered evidence in a Workmen's Compensation case may be granted in the Court of Appeals under proper circumstances. Shelton v. Spic and Span Dry Cleaners, 2 N.C.App. 528, 163 S.E.2d 288 (1968).

In 2 McIntosh, N.C. Practice 2d, § 1800 (7), p. 242, it is said:

"A motion may be made in the appellate court for a new trial for newly discovered evidence when such evidence has been discovered after the adjournment of the court below and pending the appeal. Such motions are not favored, and the court may grant or refuse the motion in its discretion, and without discussion or a written opinion as a precedent. * * The same requirements as to the nature of the evidence and the exercise of proper diligence would apply, as upon a similar motion in the lower court, and the facts should be presented by affidavits and counter affidavits."

The prerequisites to the granting of such a motion in the appellate court are set forth in Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41 (1923). See also McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467 (1966); State v. Casey, 201 N.C. 620, 161 S.E. 81 (1931); and 2 McIntosh, N.C. Practice 2d, § 1596(8), p. 100.

In the case of Ryan v. United States Lines Company, 303 F.2d 430 (2d Cir. 1962), it was held that under Rule 60(b) of the Federal Rules of Civil Procedure, the results of a new physical examination of an injured seaman was not "newly discovered evidence" which would permit reopening a judgment and the granting of a new trial.

The evidence in the case before us was in possession of the plaintiff before the opinion and award of the Commission and is not therefore evidence that has been newly discovered since the trial before the Commission.

After consideration of the motion and the supporting affidavit, we hold that the plaintiff's motion should not be allowed. Moreover, it does not meet the requirements of the rule so as to entitle him to a new hearing on the grounds of newly discovered evidence.

The opinion and award of the Commission denying plaintiff's claim for benefits under the Act is

Affirmed.

PARKER and GRAHAM, JJ., concur.