Shelton v. Spic & Span Dry Cleaners, 2 N.C. App. 528 (1968)

Oct. 9, 1968 · North Carolina Court of Appeals · No. 6810IC370

2 N.C. App. 528

ESTHER V. SHELTON, Employee v. SPIC AND SPAN DRY CLEANERS, Employee and GREAT AMERICAN INSURANCE COMPANY, Carrier

No. 6810IC370

(Filed 9 October 1968)

Master and Servant § 97— newly discovered evidence — new trial

Upon- appeal from a decision of the Industrial Commission denying; compensation to plaintiff on the ground the claim was not filed in apt. time as required by G.S. 97-24, plaintiff having alleged the accident occurred “on or about the middle” of a certain month, plaintiff’s motion for a new trial on the ground of newly discovered evidence as to the correct date of the accident which was not divulged to plaintiff until after' the-opinion of the Industrial Commission, is allowed by the Court of Appeals.

Appeal by plaintiff employee from an opinion and award by the-North Carolina Industrial Commission dated 14 May 1968. ,

Plaintiff alleges that she sustained injury to her spine as a result of a fall in January 1964 while in the course of her employment with defendant employer. On 11 January 1966 plaintiff filed notice-of claim with the Industrial Commission, alleging that the accident, occurred “on or about the middle of January, 1964.”

The hearing commissioner found that plaintiff sustained an injury by accident arising out of and in the course of her employment, with the defendant employer, and that the accident occurred on or about 6 January 1964. The hearing commissioner awarded compensation.

Upon appeal by defendants to the full commission the full commission found substantially the same facts as the hearing commissioner, except the full commission found that the date of the accident was 6 January 1964, that plaintiff’s claim was filed 11 January 1966r and that the filing of the claim was not in apt time as required by G.S. 97-24. The full commission denied compensation, and the plaintiff appealed.

Boyce, Lake and Burns, by Robert E. Smith, ¡or plaintiff appellant. ^

Teague, 'Johnson, Patterson, Dilthey and Clay, by G. S. Patterson, Jr., for defendant appellees.

Brock, J.

After the Record on Appeal and the briefs of both parties had been filed in this Court, plaintiff filed a motion for a new trial on the ground of newly discovered evidence, based upon the affidavits-of plaintiff and her husband in which it is alleged that evidence bearing upon the correct date of the accident can now be obtained from plaintiff’s employer, which evidence was not divulged to plaintiff until after entry of opinion and award by the North Carolina Industrial Commission.

After due consideration of the motion and affidavits, and after due consideration of the answer filed thereto by defendants; and without any intimation as to the sufficiency or the probative effect of the evidence, we are of the opinion that a new trial should be awarded by reason of newly discovered evidence.

In accord with the rule of our Supreme Court as recognized in Brantley v. R. R., 211 N.C. 454, 190 S.E. 731, the facts on the motion are not discussed.

Remanded to the North Carolina Industrial Commission for a new hearing.

Remanded.

Britt and Parker, JJ., concur.