Opinion
Filed 26 June, 1956.
State 3d — Where there is competent evidence tending to support the finding and conclusion of the Industrial Commission that there was no negligence on the part of the State employee in question, order of the Commission denying relief under the State Tort claims Act is properly affirmed. G.S. 143-291, G.S. 143-292.
APPEAL by claimant from Carr, J., at October 1955 Term, of ORANGE.
James R. Farlow for plaintiff appellant.
Attorney-General Rodman, Assistant Attorney-General Love, and Harvey W. Marcus, State Attorney, for defendant appellee.
JOHNSON, J., took no part in the consideration or decision of this case.
BOBBITT, J., dissenting.
Proceeding instituted before the North Carolina Industrial Commission under State Tort Claims Act, Article 31 of Chapter 143 of General Statutes, on claim of William Bradshaw, Administrator of the Estate of Jimmie Louis Bradshaw for recovery of State Board of Education, a State agency, damages in the sum of $8,000 for alleged wrongful death of Jimmie Louis Bradshaw, on 24 January, 1952, by reason of negligence of one Herbert Atwater, Jr., bus driver in operation of school bus as per affidavit dated 7 January, 1953, received by the Commission 9 January, 1953, — heard 29 April, 1954.
The record shows:
That on 20 September, 1954, Commissioner Bean entered an order in which it is recited that the case was first heard before him at Hillsboro, N.C., on 29 April, 1954, and that sometime after the hearing, plaintiff's attorney made a motion that the case be reset to take additional testimony; that the defendant's attorney objected, but that the hearing Commissioner ordered the case reset before Deputy Commissioner Hugh M. Currin on 26 August, 1954; and that testimony then taken before this Deputy has been transcribed and submitted to the Hearing Commissioner, who would file an opinion upon all the competent evidence in the case.
And, upon facts found, inter alia, that the school bus driver was not negligent at the time complained of, the Hearing Commissioner, from all the competent evidence in this case, concluded as a matter of law that there was no negligence on the part of an employee of the State resulting in damages to the claimant within the purview of G.S. 143-291 to 300.
Thereupon, "based upon all the findings of fact and conclusions of law," the Hearing Commissioner entered order that "there being no negligence, this claim shall be, and is hereby dismissed . . ." (Signed) J. W. Bean, Commissioner.
Claimant appealed to Full Commission for review for reasons stated and after hearing upon review the Full Commission, being of opinion that the assignments of error were without merit, and should be overruled, adopted as its own the findings of fact, conclusions of law, and order of Commissioner Bean, and ordered that the result reached by him be in all respects affirmed.
Claimant filed twenty-one certain exceptions thereto, and appealed to Superior Court of Orange County. And on hearing at October Term 1955, upon such appeal, the parties agreed that judgment might be rendered out of the County and out of term at the convenience of the court. Thereafter on 13 January, 1956, the Judge entered judgment in which it is recited that the court has examined the exceptions filed by claimant and the evidence set out in the record; that the court deems it unnecessary for a proper disposition of the plaintiff's appeal to rule on all of plaintiff's exceptions, and finds that exceptions 7, 8 and 11 are essential to disposition of the appeal, and overrules No. 7, and sustains 8 and 11; that it appears that the findings of the Commission that the bus driver of the defendant was not negligent to which exception No. 7 relates is the essential finding upon which the decision turns: that "it further appears that two suppositions arise on the circumstantial evidence upon which plaintiff relies to show negligence, (1) that plaintiff's intestate was where he could have been seen by the driver and the driver failed to keep a proper lookout and did not see him, and (2) that said intestate was not where the driver could have seen him in the exercise of due care when the bus passed, and in playing he came in contact with the rear part of the bus after the driver had passed him." Then the judgment continues: "The burden being upon the plaintiff to prove actionable negligence, the court, in view of the two suppositions arising on the evidence as aforesaid, is unable to find that there is no evidence to support the finding of the Commission, which the court must do if the decision is not affirmed. The Commission is authorized to find the facts. If there is any evidence to support the finding the decision must be affirmed. It is, therefore, ordered that the decision and order of the Industrial Commission denying the relief prayed for by the plaintiff be affirmed."
Plaintiff claimant excepts to the action of the court in overruling Exception No. 7, and to declining to rule on all 29 exceptions, and excepts to the judgment and appeals therefrom to Supreme Court, and assigns error.
In considering points presented on this appeal, it is pertinent to note that G.S. 143-291 provides that the North Carolina Industrial Commission, constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, and other agencies of the State, shall determine whether or not each individual claim arose as a result of a negligent act of a State employee while acting within the scope of his employment and without contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted; and that if the Commission finds that there was such negligence on the part of a State employee acting within the scope of his employment which was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages which the claimant is entitled to be paid.
And pertaining to appeal from determination of a claim by the Commission, it is provided in G.S. 143-292 that such appeal shall be heard by the Industrial Commission, sitting as a Full Commission, on the basis of the record in the matter and upon oral argument of the parties, and said Commission may amend, set aside, or strike out the decision of the Hearing Commissioner and may issue its own findings of fact and conclusions of law.
And, in respect to appeal to the Superior Court by either the claimant, or the State, it is provided in G.S. 143-293 that the "appeal shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them."
Applying these provisions of the statutes to the case in hand, the Industrial Commission has found as a fact and concluded as a matter of law that there was no negligence on the part of the employee, bus driver, of the State, resulting in damages to the claimant within the purview of G.S. 143-291 to 300, and the Superior Court being unable to find that there is no evidence to support the finding of the Commission, conclusion reached by it follows as a matter of course. Hence the judgment of Superior Court affirming the decision and order of the Industrial Commission was proper.
Let it be noted that the statute has been amended since the date of the occurrence on which the present claim arose.
Moreover error is not made to appear in other assignments.
And in view of decision reached, it is deemed unnecessary to consider the appeal by the State, or any point raised in connection therewith.
Affirmed.
JOHNSON, J., took no part in the consideration or decision of this case.