Moses v. Bartholomew , 238 N.C. 714 ( 1953 )

78 S.E.2d 923 (1953) 238 N.C. 714

MOSES
v.
BARTHOLOMEW et al.

No. 454.

Supreme Court of North Carolina.

December 2, 1953.

Charles P. Green, Louisburg, and Smith, Sapp, Moore & Smith, Greensboro, for defendants-appellants.

Hamilton Hobgood and Yarborough & Yarborough, Louisburg, for plaintiff-appellee.

ERVIN, Justice.

The assignments of error present this question for decision: Is the finding of fact of the full commission that the deceased was an employee of the Home Oil Company at the time he received the personal injuries from which he died supported by competent evidence?

The following rules are well settled in respect to proceedings coming within the purview of the North Carolina Workmen's Compensation Act:

1. Full fact-finding authority is vested in the industrial commission. G.S. § 97-84. In exercising this authority, the industrial commission, like any other trier of facts, is the sole judge of the credibility and weight of the evidence. Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515. As a consequence, it may accept or reject the testimony of a witness, either in whole or in part, depending solely upon whether it believes or disbelieves the same. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265.

2. When the party aggrieved appeals to court from a decision of the full commission on the theory that the underlying findings of fact of the full commission are not supported by competent evidence, the court does not retry the facts. The court merely determines from the proceedings had before the commission whether there was sufficient competent evidence before the commission to support the findings of fact of the full commission. This is necessarily so because under the statute codified as G.S. § 97-86, the findings of fact of the full commission are conclusive on appeal, both in the superior court and in the supreme court, if they are supported by competent evidence. Henry v. A. C. Lawrence Leather Co., supra; Withers v. Black, 230 N.C. 428, 53 S.E.2d 668; Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869.

When all is said, the case comes to this: The evidence invoked by the plaintiff and that relied on by the defendants are irreconcilable. The industrial commission accepted the testimony invoked by the plaintiff and rejected that relied on by the defendants because it believed the former and disbelieved the latter. In so doing, the industrial commission merely fulfilled its factfinding function.

The evidence invoked by the plaintiff and accepted by the industrial commission amply supports the findings of fact of the full commission. This would be true even if the dying declaration of the deceased and the testimony given by the plaintiff in person should be adjudged incompetent and eliminated from consideration for that reason. Moreover, the findings of fact justify and require the conclusions of law and the award of the full commission.

For these reasons, the judgment of the superior court affirming the decision of the full commission is

Affirmed.