Anderson v. Wray Plumbing & Heating Co. , 238 N.C. 138 ( 1953 )

76 S.E.2d 458 (1953) 238 N.C. 138

ANDERSON
v.
WRAY PLUMBING & HEATING CO., Inc. et al.

No. 670.

Supreme Court of North Carolina.

June 12, 1953.

Tim G. Warner, Greensboro, for plaintiff, appellant.

Jordan & Wright and Perry C. Henson, Greensboro, for defendants, appellees.

JOHNSON, Justice.

When an appeal is taken from the Industrial Commission to the Superior Court the statute, G.S. § 97-86, requires that a certified transcript of the record before the Commission be filed in the Superior Court. This necessarily carries to the Superior Court a transcript of the evidence in question and answer form as transcribed from the reporter's notes.

However, on appeal from the Superior Court, the procedure must be in accordance with the Rules of Practice in the Supreme Court. 221 N.C. 544 et seq. And Rule 19(4), 221 N.C. at page 556, requires that the evidence "shall be in narrative form, and not by question and answer, except that a question and answer, or a series of them, may be set out when the subject of a particular exception." This Rule further provides that "If the case is settled by agreement of counsel, or the statement of the appellant becomes the case on appeal, and the rule is not complied with, * * * the appeal will be dismissed."

The primary purpose of the Rule is to facilitate the work of this Court and expedite decisions on appeal by freeing the Court of the burden of reading and digesting great masses of evidence in question and answer form, when the essential meaning and content may be preserved, and unnecessary portions eliminated, by narrative statement.

Under the Rule, the process of reducing the testimony to narrative form is made the responsibility of counsel, to be worked out in preparing the case on appeal. This is as it should be, so that if a question be raised respecting whether the meaning of the original testimony is preserved or varied in the process of narration, the question posed may be resolved by the trial judge in settling the case on appeal, with both sides being afforded an opportunity to be heard. G.S. § 1-283. Thus this Court is relieved largely of the responsibility of preserving the testimonial meaning of crucial phases of the evidence in cases like the instant one, where exceptions brought forward challenge the sufficiency of the evidence to support the findings of fact and necessitate, in connection with the written opinion, a narrative statement of the controlling phases of the evidence.

The Rule is mandatory and will be enforced ex mero motu. See Rhoades v. City of Asheville, 220 N.C. 443, 17 S.E. 2d 500; Casey v. East Carolina Railway, 198 N.C. 432, 152 S.E. 38; In re De Febio, 237 N.C. 269, 74 S.E.2d 531; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126. It must be applied in cases originating before the Industrial Commission no less than in other cases.

Here the case on appeal was settled by counsel. The record discloses that all the evidence is brought forward in mass in question and answer form. The Rule will be enforced, and it is so ordered.

Nevertheless, an examination of the evidence as brought forward in question and answer form discloses that the findings and conclusions and the decision of the Industrial Commission, as affirmed by the Superior Court, are supported by the record and should be sustained under application of authoritative decisions of this Court.

Accordingly the judgment will be affirmed and the appeal dismissed. Casey v. East Carolina Railway, supra; Cf. Brewer v. Mineola Manufacturing Co., 161 N.C. 211, 76 S.E. 237.

Judgment affirmed; appeal dismissed.