Moore v. SUPERIOR STONE COMPANY

110 S.E.2d 459 (1959) 251 N.C. 69

Eugene MOORE, Employee,
v.
SUPERIOR STONE COMPANY, Employer, and Indemnity Insurance Co. of North America, Carrier.

No. 181.

Supreme Court of North Carolina.

October 14, 1959.

Charles L. Abernethy, Jr., New Bern, for plaintiff.

Barden, Stith & McCotter, New Bern, for defendants.

DENNY, Justice.

In a workmen's compensation case, which has been appealed from the Commission to the Superior Court, the judge of the Superior Court has the discretionary power to grant an appellant's motion to remand for a rehearing on the ground of newly discovered evidence under proper circumstances. Byrd v. Gloucester Lumber Co., 207 N.C. 253, 176 S.E. 572.

It is contended by the movant that where a minor or one who is non compos mentis is involved there is no statute of limitations that can be invoked by an appellee.

In the instant proceeding, the plaintiff was 18 years of age at the time of his injury on 23 February 1953. An injured employee who has attained the age of 18 is sui juris for the purpose of filing and prosecuting a claim for compensation, pursuant to the provisions of our Workmen's Compensation Act. G.S. § 97-1 et seq. Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 142 A.L.R. 1033. Hence, the contention with respect to the minority of Eugene Moore at the time he instituted his proceeding for compensation is without merit.

Moreover, a judgment obtained adverse to one who is non compos mentis at the time of the trial, but who had not been previously so adjudged, is not void but voidable. Cox v. Cox, 221 N.C. 19, 18 S.E.2d 713; Hood, Com'r v. Holding, 205 N.C. 451, 171 S.E. 633; Farmers' & Merchants' Bank v. Duke, 187 N.C. 386, 122 S.E. 1, 34 A.L.R. 215.

In the absence of fraud, a party, in order to obtain a new trial on the ground of newly discovered evidence, must move in apt time and must show that a different result would probably be reached if a new trial were granted. State v. Casey, 201 N. C. 620, 161 S.E. 81; Farmers' & Merchants' Bank v. Duke, supra. No such showing is made on this appeal. It is not even contended that there is any newly discovered evidence.

In the instant case, the movant expressly states that plaintiff's counsel acted in good faith, and there is no suggestion of fraud. On the contrary, the appellant's brief states: "The full Commission it is contended could not have reached their (sic) findings except from inferences drawn from the most unfortunate testimony of the worker." In view of this contention we have carefully examined the evidence in the original proceeding. The plaintiff testified at some length about his work and his duties; that he went into the doghouse on the day the explosion occurred; that the others left the premises to get lunch; that he ate his lunch and laid down on a bench to take a nap and knew nothing about what happened until he became conscious some days later in the hospital. His father, who has been appointed his next friend, was present at the hearing and testified in his son's behalf. There was no testimony or suggestion tending to show that the plaintiff was mentally handicapped to such an extent as to put anyone on notice that he was incapable of prosecuting his claim. His physician testified as a witness for him and among other things said: "I have had occasion to talk with him recently. I can't say that anything about his manner of answering questions appears to be abnormal. There may be a little, but not definitely. I can't tell. He has been complaining lately. He's been coming in with hemorrhoids, discussing and going over all that with him; his answers are intelligent."

In Farmers' & Merchants' Bank v. Duke, supra, there was a motion made by the administrator of the defendant for a new trial, based on the ground that H. J. Duke was insane at the time of the trial. The judge declined to pass on the question of the sanity of the defendant Duke at the time the verdict was rendered and likewise refused to set aside the verdict and judgment. In affirming the ruling of the court below, this Court pointed out that H. J. Duke was represented by counsel in the trial, his son, Otho Duke, the present administrator, was present, and so were other members of his family, neighbors and friends. No suggestion was made to the judge holding the court or to the attorneys for plaintiff that defendant's intestate was non compos mentis. Therefore, the refusal of the court to pass on the question as to whether the defendant Duke was non compos mentis at the time of the trial was upheld. While it appears that a motion for a new trial was made in apt time in the Duke case, as provided in G.S. § 1-220, there was no showing that a different result would probably have been reached if a new trial had been granted.

Likewise, in the instant case, there is no showing or even a suggestion that if a new trial were granted the evidence upon which the Commission made its findings and drew its conclusions of law would be different in any respect.

Therefore, in light of the facts and circumstances involved in this proceeding, in our opinion the court below was without jurisdiction to grant a new trial based on the grounds stated. Moreover, if it should be conceded that the court below had jurisdiction, and it should be further conceded that the plaintiff was non compos mentis at the time of the original hearing in this case, no showing has been made that would entitle him to a new trial under our decisions.

The ruling of the court below is

Affirmed.

HIGGINS, J., not sitting.