Ormond v. Garrett , 8 N.C. App. 662 ( 1970 )

175 S.E.2d 371 (1970) 8 N.C. App. 662

William Lee ORMOND, Petitioner,
v.
Joe W. GARRETT, North Carolina Commissioner of Motor Vehicles, Respondent.

No. 7010SC212.

Court of Appeals of North Carolina.

July 15, 1970.

Everett & Cheatham, by James T. Cheatham, Greenville, for petitioner appellee.

Robert Morgan, Atty. Gen., and T. Buie Costen, Staff Atty., for the State.

HEDRICK, Judge.

The appellant, Joe W. Garrett, North Carolina Commissioner of Motor Vehicles, assigns as error the decision of Judge Bailey reversing the order of the North Carolina Driver License Medical Review Board denying the petition of William Lee Ormond for a North Carolina motor vehicle operator's license. The appellee contends that the findings, inferences, conclusions and decision of the Medical Review Board of the North Carolina Department of Motor Vehicles denying him an operator's license were not supported by competent, material and substantial evidence in view of the entire record as submitted.

An appeal to the Superior Court of Wake County is provided from the denial of a driver's license under G.S. § 143-306 et seq. G.S. § 20-9(g) (4) (f). Under the provisions of G.S. § 143-315, the Superior Court of Wake County is given the power to reverse decisions of administrative agencies if the petitioner's substantial rights have been prejudiced because the administrative findings, inferences, conclusions, or decisions are unsupported by competent, material, and substantial evidence in view of the entire record as submitted. Waggoner v. Board of Alcoholic Control, 7 N.C.App. 692, 173 S.E.2d 548 (1970).

Prior to 1967, G.S. § 20-9(d) prohibited the licensing of anyone who had been diagnosed as having grand mal epilepsy. In 1967 this section was amended to delete the words "grand mal epilepsy".

The Department of Motor Vehicles, in finding that the petitioner was incompetent to operate a motor vehicle, and in suspending his driver's license on 17 September 1969, apparently proceeded under G.S. § 20-9(e) which provides:

"The Department shall not issue an operator's or chauffeur's license to any person when in the opinion of the Department such person is afflicted with or suffering from such physical or mental disability or disease as will serve to prevent such person from exercising reasonable and ordinary control over a motor vehicle while operating the same upon the highways, * * *."

The Medical Review Board in the present case found as a fact that the petitioner has been suffering from epilepsy since 1951. All of the evidence received by the Medical Review Board was to the effect that the petitioner's epilepsy was controlled and that he was capable of operating a motor vehicle. The Board, in finding of fact number 9, found that the petitioner's condition was controlled by taking prescribed medication in the form of dilantin and phenobarbital. However, after finding that his condition was controlled medically, the Board proceeded to deny him driving privileges. The decision and order of the Medical Review Board does not contain any finding that the petitioner is afflicted with or suffering from "such physical or mental disability or disease as will serve to prevent such person from exercising reasonable and ordinary control over a motor vehicle while operating the same upon the highways, * * *." In the absence of such a finding, it is our opinion that the Board was without authority to deny the petitioner his driving privileges.

The judgment appealed from is affirmed.

Affirmed.

BRITT, J., concurs.

BROCK, J., dissents.