Bullman v. North Carolina State Highway Commission

195 S.E.2d 803 (1973) 18 N.C. App. 94

Andrew J. BULLMAN and Dorothy Ann Bullman
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 7328IC204.

Court of Appeals of North Carolina.

April 25, 1973.

Clarence N. Gilbert, Asheville, for plaintiff-appellees.

Atty. Gen. Robert Morgan and Associate Atty. E. Thomas Maddox, Jr., Raleigh, for defendant-appellant.

HEDRICK, Judge.

Defendant assigns as error the admission of testimony of plaintiff Andrew J. Bullman that the driver of the Highway Commission truck, Robert Greer Johnson, stated after the accident: "I hit you. I was a-coming so fast I couldn't stop."

Citing Jones v. Aircraft Co., 251 N.C. 832, 112 S.E.2d 257 (1960) and Stansbury, N.C. Evidence 2d, § 169, defendant contends the statement of the agent was inadmissible against the principal since it was in regard to a past occurrence not forming part of the res gestae.

Assuming arguendo that the statement made by the driver-employee was not part of the res gestae, its admission was not prejudicial error since the testimony of John Crawford Swilling that the Highway Commission truck was being operated at 60 miles per hour is sufficient to support the Commission's findings that the truck was being operated at an excessive rate of speed immediately prior to and at the time of the accident. Osborne v. Ice Co., 249 N.C. 387, 106 S.E.2d 573 (1959). Where there is any competent evidence to support a finding of the Industrial Commission, such finding is conclusive on appeal. Mackey v. Highway Comm., 4 N.C.App. 630, 167 S.E.2d 524 (1969); G.S. 143-293.

Defendant next assigns as error the conclusion of the Commission that appellant was negligent and that appellees were not contributorily negligent.

Findings of fact of the Industrial Commission, if supported by any competent evidence, are binding on appeal even though there is evidence which would support a contrary finding. Stroud v. Memorial Hospital, 15 N.C.App. 592, 190 S.E.2d 392 (1972). The record contains sufficient competent evidence to support the material findings and conclusions of the Commission.

For the reasons stated, the opinion and award of the Industrial Commission is

Affirmed.

CAMPBELL and BRITT, JJ., concur.