McGinnis v. Old Fort Finishing Plant ( 1960 )

117 S.E.2d 490 (1960) 253 N.C. 493

Alvin McGINNIS
v.
OLD FORT FINISHING PLANT and Liberty Mutual Insurance Company.

No. 26.

Supreme Court of North Carolina.

December 14, 1960.

Paul J. Story, Marion, for plaintiff-appellant.

Van Winkle, Walton, Buck & Wall, Asheville, for defendant-appellees.

WINBORNE, Chief Justice.

Plaintiff, appellant, in brief filed states this as the questions involved on this appeal: "Did defendants, by their conduct, waive the provisions of G.S. § 97-47 as a defense to plaintiff's claim for compensation, and are said defendants now estopped to plea said statute in bar of plaintiff's right to recover herein."

In this connection the North Carolina Industrial Commission has authority under G.S. § 97-80 to make rules, not inconsistent with Article One of the Workmen's Compensation Act, for carrying out the provisions thereof. Pursuant thereto the Commission has adopted a rule "XXI" pertaining to appeal to the Full Commission. It provides: "1. In every case appealed to the full commission the particular grounds for the appeal must be stated * * *", and "4. Particular grounds for appeal not set forth in the application for review shall be deemed to be abandoned and argument thereon shall not be heard before the full commission."

In the case in hand the plaintiff in filing application for review of the opinion and award of the hearing commissioner states six grounds, neither one of which pertains to the matter of waiver by defendants of the provisions of G.S. § 97-47. Indeed the application for review there expressly states that "All grounds for appeal not specifically set forth herein are hereby specifically waived and abandoned except as otherwise provided by law and the rules of the Industrial Commission."

And the defendants contend, and it seems properly so, that the position now taken by plaintiff appellant is a change of theory in Superior Court from that pursued before the hearing commissioner and the full commission. This is not permissible. See among others Paul v. Neece, 244 N.C. 565, 94 S.E.2d 596; Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222; Bivins v. Southern Ry. Co., 247 N.C. 711, 102 S.E.2d 128.

Paul v. Neece, supra, [244 N.C. 565, 94 S.E.2d 600] states: "It is a well-settled principle in this State that the theory upon which the case is tried in the courts below must prevail in considering the appeal and in interpreting a record and in determining the validity of exceptions." See Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644. Also Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694.

Thus the first part of the questions stated does not arise, and, hence, the second part becomes moot.

If this were not so, the North Carolina Industrial Commission being a fact finding body, G.S. § 97-86, Brice v. Robertson House Moving Wrecking & Salvage Co., 249 N.C. 74, 105 S.E.2d 439, has made findings of fact which, under decisions of this Court, are held to be conclusive on appeal, both in the Superior Court and in the Supreme Court, when supported by competent evidence. See among many others: Nissen v. City of Winston-Salem, 206 N.C. 888, 175 S.E. 310; Hildebrand v. McDowell Furniture Co., 212 N.C. 100, 193 S.E. 294; Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869; Fetner v. Rocky Mount Marble & Granite Co., 251 N.C. 296, 111 S.E.2d 324.

An examination of the record reveals adequate evidence to support the findings of fact made, and the conclusions of law as arising thereon.

For reasons stated the judgment from which this appeal is taken is

Affirmed.