Beaver v. Crawford Paint Co. , 240 N.C. 328 ( 1954 )

82 S.E.2d 113 (1954) 240 N.C. 328

BEAVER
v.
CRAWFORD PAINT CO. et al.

No. 672.

Supreme Court of North Carolina.

May 19, 1954.

Adam Younce, Greensboro, for plaintiff appellee.

Jordan & Wright, Greensboro, for defendants appellants.

DENNY, Justice.

The only exception entered in the Superior Court was to the signing of the judgment. However, the appellant assigns as error the ruling of the court below in affirming the award of the Commission, "for that the findings of fact and conclusions of law by full Commission are not supported by the competent evidence offered." They likewise assign as error the ruling of the court below in affirming the award of the Commission, "for that the competent evidence offered is insufficient to establish that the injury alleged was by accident within the meaning of the North Carolina Workmen's Compensation Act."

An exception to the signing of a judgment will not support an assignment of error, purporting to challenge the sufficiency of the evidence to support the findings of fact. Such exception presents one question and one question only, and that is whether the facts found are sufficient to support the judgment. Donnell v. Cox, N.C., 81 S.E.2d 664; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762; Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467; Fox v. Cramerton Mills, Inc., 225 N.C. 580, 35 S.E.2d 869; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609.

Moreover, it is the general rule that an assignment of error not based on an exception duly and timely taken will not be considered on appeal. State v. Taylor, 240 N.C. 117, 80 S.E.2d 917, and cited cases.

In our opinion, the evidence disclosed on the present record does not support some of the findings of fact. Even so, where there is no exception taken to such findings, they are presumed to be supported by the evidence and are binding on appeal. Wyatt v. Sharp, supra; Greene v. Mitchell County Bd. of Education, 237 N.C. 336, 75 S.E.2d 129; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601; Wood v. Citizens' Bank, 199 N.C. 371, 154 S.E. 623; Sturtevant v. Selma Cotton Mills, 171 N.C. 119, 87 S.E. 992.

It would seem that the facts as found are sufficient to support the judgment. Edwards v. Piedmont Publishing Co., 227 N.C. 184, 41 S.E.2d 592; Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231. Consequently, this decision is made to rest upon a question of appellate procedure. Therefore, it becomes a precedent in that respect only and not upon the merits of plaintiff's claim.

The judgment of the court below is

Affirmed.