Ballenger Paving Co. v. North Carolina State Highway Commission

129 S.E.2d 245 (1963) 258 N.C. 691

BALLENGER PAVING COMPANY
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 455.

Supreme Court of North Carolina.

February 1, 1963.

T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., John C. Daniel, Trial Atty., for the State.

Maupin, Broughton, Taylor & Ellis, Raleigh, for plaintiff-appellee.

SHARP, Justice.

The defendant has specifically waived its assignment of error 1 and 2 which charged that the facts found by the Board of Review are not supported by competent evidence. The position of the defendant on this appeal is that the Board's findings of fact are supported by competent evidence but that the judge exceeded his jurisdiction by making additional findings of fact upon which he based a new award of $2,000.00 to the plaintiff. The defendant argues that the quoted portions of the judgment (unnumbered paragraphs 4, 5, & 6) are a nullity and that the cause should be remanded for judgment in accordance with the facts found by the Board and the legal conclusion of his Honor that those facts do not support the Board's conclusion that the delay was due to unforeseeable causes beyond the control and without fault or negligence on the part of plaintiff. In other words, the defendant contends that having reached this legal conclusion, Judge Clark should have modified the award of the Board in conformity with its findings of fact. With this contention we must agree. The Board having found that plaintiff actually delayed the project for eleven days beyond the thirty working days within which the contract required its completion, defendant was entitled to deduct $1,100.00 and the plaintiff is entitled to an award of $1,800.00.

G.S. § 136-29 provides that an appeal from the decision of the Board of Review to the Superior Court of Wake County shall be "under the same terms, conditions and procedure as appeals from the Industrial Commission, as provided in § 97-86." Under this latter section the award of the Industrial Commission is conclusive and binding as to all questions of fact, and the appeal to the Superior Court is for error of law only. Therefore, when an award of a Board of Review constituted under G.S. § 136-29 is appealed to the Superior Court, it has only appellate jurisdiction to review the award for errors of law. The judge may not find additional facts or make an award himself. Fetner v. Rocky Mountain Marble & Granite Works, 251 N.C. 296, 111 S.E.2d 324; Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439.

The only questions before the judge were whether the Board's findings of fact were supported by the evidence and, if so, whether these findings supported the legal conclusion it reached. The judge answered the first question YES and the second question NO. He had no power to make additional findings with reference to correspondence between the plaintiff and the Highway Commission or to find, in effect that the Commission had suffered no damages as a result of plaintiff's delay in completing the project. A specific provision of the contract made time of the essence. Childress v. C. W. Myers Trading Post, Inc., 247 N.C. 150, 100 S.E.2d 391. Damages were not an issue. At the hearing before the Board the parties had made the following stipulation:

"It is further stipulated and agreed that in accordance with the contract liquidated damages on this project will be one hundred dollars per calendar day."

The only question before the Board was how many, if any, of excess working days should be charged under Section 8.6 of the Standard Specifications. Furthermore, an award of $900.00 cannot be denominated nominal damage which is "a small trivial sum awarded in recognition of a technical injury which has caused no substantial damage." Hairston v. Atlantic Greyhound Corp., 220 N.C. 642, 18 S.E.2d 166. Inflation has not yet reached the stage where $900.00 can be called trivial.

We think it not amiss to say that the evidence in the case on appeal as to the number of working days between June 15th and September 7th is scant indeed. The record contains only a few entries from the engineer's diary, and does not disclose the basis upon which the State Highway Commission deducted $2,900.00 from its final settlement. A possible explanation of the Board's finding that the project was completed in eleven days beyond the thirty working days specified in the contract can be found. However, be that as it may, on this appeal, the findings of the Board are unchallenged and conclusive.

The portions of the judgment of the Superior Court of Wake County to which defendant excepted are a nullity and must be stricken. The cause is remanded to the Superior Court which is directed to enter a judgment that the plaintiff recover of the defendant the sum of $1,800.00.

Error and remanded.