Smith v. William Muirhead Construction Co. , 27 N.C. App. 286 ( 1975 )

218 S.E.2d 717 (1975) 27 N.C. App. 286

George A. SMITH, Employee, Plaintiff,
v.
WILLIAM MUIRHEAD CONSTRUCTION COMPANY, INC., Employer,
American Mutual Liability Insurance Company, Carrier, Defendants.

No. 7514IC365.

Court of Appeals of North Carolina.

October 15, 1975.

Eugene C. Brooks, III, Durham, for plaintiff-appellant.

Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., Greensboro, for defendants-appellees.

BRITT, Judge.

Plaintiff contends that the full commission erred in vacating the opinion and award of the hearing commissioner. Among other things, he argues that the evidence raised the issue of equitable estoppel and that the full commission failed to make findings of fact on the issue. We find merit in the argument.

In reviewing the opinion and award of the hearing commissioner, the commission was authorized by G.S. 97-85 to "reconsider the evidence" and, if proper, to vacate the award. Lee v. Henderson and Associates, 284 N.C. 126, 200 S.E.2d 32 (1973). The power of the commission to review and reconsider the evidence carries with it the power to modify or strike out findings of fact made by the hearing commissioner. Brewer v. Trucking Company, 256 N.C. 175, 123 S.E.2d 608 (1962). While the commission is not required to make a finding as to each fact presented by the evidence, it is required to make specific findings with respect to crucial facts upon which the question of plaintiff's right to compensation depends. Morgan v. Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968).

Next, we consider the question of estoppel. Plaintiff contends defendants are estopped to plead the lapse of time because of representations made to him by Mrs. Coleman at the time he signed form 28B. He argues that Mrs. Coleman's statements not only induced him to sign the form but also lured him into believing that the lapse in time following the last statement of compensation would not affect his right to receive additional compensation.

In Watkins v. Motor Lines, 279 N.C. 132, 139, 181 S.E.2d 588, 593 (1971), in an opinion by Justice Huskins, we find:

"The law of estoppel applies in compensation proceedings as in all other cases." Biddix v. Rex Mills, supra [237 N.C. 660, 75 S.E.2d 777]. In McNeely v. Walters, 211 N.C. 112, 189 S.E. 114 (1937), Chief Justice Stacy, speaking for the Court, said: "The doctrine of equitable estoppel is based on an application of the golden rule to the every day affairs of men. It requires that one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed.... Its compulsion is one of fair play."

While the evidence in the instant case on the question of estoppel was minimal, we think it was sufficient to raise the issue and require a finding of fact on the issue. In his paragraph numbered 2, set out above, the hearing commissioner made a finding on the question. In the commission's paragraph numbered 2, set out above, it merely eliminated the hearing commissioner's finding and made no finding in its place. The conclusion that "plaintiff has shown no conduct on the part of the defendant which constitutes estoppel" is not sufficient to meet the requirement with respect to findings of fact.

It has been held that it would be contrary to the essence of the fact finding authority conferred by G.S. 97-84 to make it obligatory upon the commission to accord unquestioned credence even to uncontradicted testimony. Anderson v. Motor Company, 233 N.C. 372, 64 S.E.2d 265 (1951). Nevertheless, when evidence is presented in support of a material issue raised, it becomes necessary for the commission to make a finding one way or the other.

For the reasons stated, the order appealed from is vacated and this cause is remanded to the Industrial Commission for further proceedings not inconsistent with this opinion.

Reversed and remanded.

HEDRICK and MARTIN, JJ., concur.