Parsons v. Alleghany County Board of Education , 4 N.C. App. 36 ( 1969 )

165 S.E.2d 776 (1969) 4 N.C. App. 36

Nannie PARSONS
v.
ALLEGHANY COUNTY BOARD OF EDUCATION.

No. 6923IC66.

Court of Appeals of North Carolina.

February 26, 1969.

Arnold L. Young, Sparta, and J. Colin Campbell, Independence, Va., for plaintiff appellee.

Atty. Gen. Robert Morgan, by Staff Attorney R. N. League, Raleigh, and R. F. Crouse, Sparta, for defendant appellant.

MALLARD, Chief Judge.

This case grew out of a collision in the State of Virginia between a school bus owned by the defendant and an automobile owned by the plaintiff. The substantive law of the State of Virginia is applicable. The procedural laws of the State of North Carolina are applicable. Thus, whether under the substantive law of Virginia the evidence offered by plaintiff is sufficient to support the findings of fact is determinable in accordance with the laws of the State of North Carolina. Conrad v. Miller Motor Express, 265 N.C. 427, 144 S.E.2d 269.

In the case of Kirby v. Fulbright, 262 N.C. 144, 136 S.E.2d 652, Justice Bobbitt said:

"The substantive rights and liabilities of the parties are to be determined in accordance with the law of Virginia, the lex loci. Procedural matters are to be determined in accordance with the law of North Carolina, the lex fori. Nix v. English, 254 N.C. 414, 419, 119 S.E.2d 220, and cases cited; Knight v. Associated Transport, 255 N.C. 462, 464, 122 S.E.2d 64; Frisbee v. West, 260 N.C. 269, 271, 132 S.E.2d 609. G.S. § 8-4 requires that we take judicial notice of the pertinent Virginia law.

Whether, under the substantive law of Virginia, the evidence was sufficient to require its submission to the jury is determinable in accordance with the procedural law of this jurisdiction."

There was ample evidence to support the findings of fact of the Industrial Commission. The findings of fact reveal a violation by the defendant's bus driver of that portion of the Virginia Code § 46.1-216 reading as follows: "Every driver who intends to start, back, stop, turn or partly turn from a direct line shall first see that such movement can be made in safety. * * *" A violation of this section constitutes negligence under the Virginia law. Unger v. Rackley, 205 Va. 520, 138 S.E.2d 1.

The defendant's driver testified that he did not hear the plaintiff sound her horn and that he did not even see plaintiff's vehicle until after he had backed his bus off of Highway #93 into Virginia Secondary Road #708. According to defendant's agent (the bus driver), he violated the provision of this statute, in that he backed the school bus into Road #708 and struck plaintiff's automobile without even seeing it until after the collision. It is clear that he backed the school bus into Road #708 without first seeing that such movement could be made in safety and was therefore guilty of negligence in the operation of the school bus. The Supreme Court of Virginia said in the case of Messick v. Barham, 194 Va. 382, 73 S.E.2d 530, that "(i)t is as much the duty of the driver of a car intending to back his car to give proper warning of his intention, and while backing to look where he is backing, as it is his duty to look to the front while proceeding forward and to give timely warning of his approach. Backing is naturally more dangerous than driving forward, and, therefore, should require no less care than the latter. * * *

* * * It is as much the duty of the driver of a car to keep and maintain a proper lookout after his car starts to move as it is to look before it moves."

Defendant contends that the Industrial Commission committed error in finding that plaintiff was not contributorily negligent and that only defendant's negligence proximately caused plaintiff's injuries. This contention is without merit. The evidence tends to show that plaintiff had stopped her car on a downhill grade about 55 or 60 feet from the traffic island. That the school bus was 30 or 35 feet long. That when the school bus driver kept coming on back, she blew her horn, and the bus was coming too fast for her to move before it hit her.

Defendant cites many Virginia cases holding in substance that a plaintiff has the duty to use reasonable care to avoid injury from a defendant's negligence if such action is reasonable. Defendant also cites the case of Penoso v. D. Pender Grocery Co., 177 Va. 245, 13 S.E.2d 310, which states that "the duty to maintain a lookout involves not only the physical act of looking, but also a reasonably prudent reaction to whatever might be seen." We think this rule applied both to the plaintiff and the driver of defendant's bus. Under the circumstances disclosed by this evidence, the plaintiff, under the Virginia law, also had the right to rely on the presumption that the driver of the school bus would comply with the applicable provisions of the Virginia law in backing the vehicle. Luck v. Rice, 182 Va. 373, 29 S.E.2d 238; Unger v. Rackley, supra. Plaintiff testified in substance that after she ascertained the driver of the school bus was not going to stop, she blew her horn but did not have time to back her vehicle out of the path of the school bus. The Industrial Commission, the fact-finding body, found that plaintiff was not contributorily negligent and in so doing found, in effect, that she saw and then reacted to what she saw in a reasonably prudent manner. Whitfield v. Dunn, 202 Va. 472, 117 S.E.2d 710.

The findings of fact of the Industrial Commission are supported by competent evidence. It is provided in G.S. § 143-293 that the appeal to the Court of Appeals from the decision of the Full Commission is for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. In fact, defendant in its brief says:

"While at the trial level defendant disputed certain of the facts on which findings were based, it does not challenge the content of the existing findings on appeal since evidence exists to support them."

Defendant contends that "the substantive aspects of this case may not be properly before the Court of Appeals because of the sketchy findings of fact made below." Defendant moved for additional findings of fact and excepted to the failure to find them. This contention is without merit. The facts found are pertinent to the issues and are ample to determine the dispute and support the award. G.S. § 97-84. Defendant has cited no authority and we have found none which requires the Industrial Commission to make findings coextensive with the credible direct evidence as defendant contends. In the case of Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596, the Court said: "The Commission is not required to make a finding as to each detail of the evidence or as to every inference or shade of meaning to be drawn therefrom."

It is noted in the record that there is no answer filed by the defendant alleging contributory negligence or any other defense. It was admitted on oral argument that no answer was filed. The last paragraph of G.S. § 143-297 reads as follows:

"The department, institution or agency of the State against whom the claim is asserted shall file answer, demurrer or other pleading to the affidavit within thirty (30) days after receipt of copy of same setting forth any defense it proposes to make in the hearing or trial, and no defense may be asserted in the hearing or trial unless it is alleged in such answer, except such defenses as are not required by the Code of Civil Procedure or other laws to be alleged." (Emphasis added.)

G.S. § 1-139 reads as follows:

"In all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it must be set up in the answer and proved on the trial."

Applying these two statutes, we are of the opinion that since the defendant did not file an answer setting forth contributory negligence as a defense, its contention that the Industrial Commission did not make any additional findings of fact as to contributory negligence is without merit.

Defendant in its brief also asserts:

"It seems clear from the above that the failure to find the facts moved for was not because they were untrue or unbelieved but because of one of the following errors of law:

(a) the Industrial Commission arbitrarily and capriciously desired to deprive defendant of the successful chance to overturn its decision on appeal by intentionally excluding from its findings direct evidence which was believed;

(b) the Industrial Commission did not feel that its written findings needed to be coextensive with the credible direct evidence in order to afford appellate review to defendants; (sic)

(c) the Industrial Commission did not feel the evidence was relevant or conclusive;

Defendant submits that ``(a)' above is a violation of due process of law; ``(b)' above goes against the citations set out above under this question; ``(c)' above is contrary to the case law cited under Question I in this brief."

We have carefully examined the entire record and are of the opinion and so hold that on this record there is nothing to indicate a desire on the part of the Industrial Commission to arbitrarily and capriciously deprive defendant of the successful chance to overturn its decision on appeal by intentionally excluding from its findings direct evidence which was believed, and that there is no violation of due process as contended by defendant.

We find nothing in this record or the citations in defendant's brief to indicate any feeling, negative or positive, on the part of the Industrial Commission with respect to making necessary findings in order to afford appellate review to defendant. Such contention, as is set out in section (b) above, is without merit.

We also do not find anything in this record or the case law cited in defendant's brief to indicate that the Industrial Commission did not feel the evidence was relevant or conclusive.

The award of the North Carolina Industrial Commission is

Affirmed.

BRITT and PARKER, JJ., concur.