Butts v. Montague Bros., 208 N.C. 186 (1935)

May 1, 1935 · Supreme Court of North Carolina

208 N.C. 186

JOE BUTTS, Employee, and LUCY BUTTS, Administratrix, Widow, Next of Kin, and Dependent of JOE BUTTS, Deceased, v. MONTAGUE BROS., Employer, and PUBLIC INDEMNITY COMPANY, Insurance Carrier.

(Filed 1 May, 1935.)

1. Master and Servant F d — Industrial Commission held to have the power to order a rehearing for newly discovered evidence.

While there is no direct statutory provision giving the Industrial Commission power to order a rehearing of an award made by it for newly discovered evidence, the Commission has such power in proper instances in accordance with its rules and regulations, N. C. Code, 8081 (jjj), it being the intent of the Legislature, as gathered from the whole act, to give the Industrial Commission continuing jurisdiction of all proceedings begun before it with appellate jurisdiction in the Superior Court on matters of law only.

2. Same — Upon remand of cause to Industrial Commission the Commission acquires jmrisdiction for all purposes.

Where a proceeding is remanded to the Industrial Commission by the Superior Court for a specific purpose in accordance with a decision of the Supreme Court upon a former appeal, the Superior Court surrenders jurisdiction and the Industrial Commission acquires jurisdiction for all purposes, and the Commission has the power, notwithstanding that the remand of the cause was for a specific purpose, to order a rehearing for newly discovered evidence in accordance with its rules and regulations.

Appeal by defendants Montague Bros, from Barnhill, J., at August Term, 1934, of "Wayne.

Reversed.

This is a proceeding for compensation under the provisions of the North Carolina "Workmen’s Compensation Act.

The proceeding was begun before the North Carolina Industrial Commission on 20 May, 1931, by Joe Butts, an employee of Montague Bros., for compensation for an injury by accident which arose out of and in the course of his employment on 29 January, 1929.

The proceeding was first heard by Commissioner Dorsett, at Golds-boro, N. 0., on 23 June, 1931. On the facts found by him, Commissioner Dorsett denied compensation, and Joe Butts, the employee, appealed to the full Commission.

The proceeding was heard on this appeal by the full Commission at Raleigh, N. C., on 22 September, 1931. The full Commission set aside the finding of fact made by Commissioner Dorsett, on which he had denied compensation, and on its finding of fact, made in lieu thereof, awarded compensation. This award was made on 6 October, 1931. Both Montague Bros., the employer, and Public Indemnity Company, tbe insurance carrier, appealed from tbis award to the Superior Court of Wayne County.

After the proceeding was docketed in the Superior Court on said appeal, and while it was pending in said court, it was ascertained that Joe Butts had died on 21 September, 1931, and was therefore dead at the time the award was made by the Industrial Commission on 6 October, 1931. His widow, Lucy Butts, was duly appointed as administratrix of Joe Butts, deceased, and as such was made a party to the proceeding on 25 July, 1932.

The proceeding was heard at November Term, 1932, of the Superior Court of Wayne County, by Judge Grady, who rendered a judgment at said term dismissing the proceeding. Erom this judgment, Lucy Butts, administratrix, appealed to the Supreme Court. At the hearing of this appeal the judgment dismissing the proceeding was reversed. The proceeding was remanded by the Supreme Court to the Superior Court of Wayne County, “with direction that the Industrial Commission proceed, after notice to the parties, to hear evidence and find therefrom who arc the next of kin of Joe Butts, deceased, dependent upon him for support at his death.” See 204 N. 0., 389, 168 S. E., 215.

At June Term, 1933, of the Superior Court of Wayne County, Judge Erizzelle ordered that the proceeding “be remanded to the North Carolina Industrial Commission with direction to said Commission, after notice, to find who are the next of kin of Joe Butts, deceased, dependent upon him for support at his death, to make said next of kin parties to this proceeding, and to transmit this proceeding back to this court for further proceedings in accordance with the opinion of the Supreme Court in this case.”

Pursuant to said order, the Industrial Commission heard the proceeding and found that Lucy Butts, widow of Joe Butts, was his next of kin, dependent upon him for support at his death. Lucy Butts, as widow, next of kin, and dependent of Joe Butts, deceased, was made a party to the proceeding by the Industrial Commission.

While the proceeding was pending before the Industrial Commission, pursuant to the order of Judge Frizzelle, Montague Bros., the employer, moved for a rehearing of the proceeding on the ground that since the award was made on 6 October, 1931, new evidence had been discovered by the said employer, which was pertinent to the question involved in the proceeding, and which, if heard by the Commission, would result in an award that the plaintiff is not entitled to compensation in this proceeding. This motion was allowed by the Industrial Commission, and the plaintiff Lucy Butts, widow, next of kin, and dependent of Joe Butts, deceased, appealed to the Superior Court.

At tbe bearing of tbis appeal tbe order of tbe Industrial Commission for a rebearing on tbe ground of newly discovered evidence was reversed, and tbe award made by tbe Industrial Commission on 6 October, 1931, was affirmed. Tbe defendant Montague Bros, appealed to tbe Supreme Court.

Kenneth 0. Royall and Robert A. Hovis for plaintiffs.

Langston, Allen & Taylor and Scott B. Berkeley for defendants.

CONNOR, J.

There is no provision in tbe North Carolina Workmen’s Compensation Act for a rehearing of a proceeding in which tbe North Carolina Industrial Commission has made an award in accordance with tbe provisions of tbe act, on tbe ground of newly discovered evidence. It is provided in tbe act, however, that tbe Industrial Commission, on its own motion, or on tbe application of a party to tbe proceeding, may review an award made by tbe Commission, on tbe ground of a change of conditions since tbe award was made. Upon such review, tbe Commission may vacate and set aside an award previously made by it, or may diminish or increase tbe amount of compensation awarded, within tbe limits provided in tbe act. N. 0. Code of 1931, sec. 8081 (bbb). Tbe Commission also has tbe power to make rules not inconsistent with tbe act, for carrying out its provisions. N. C. Code of 1931, sec. 8081 (jjj). All tbe provisions of tbe act show that it was tbe purpose of tbe General Assembly that tbe Industrial Commission should have a continuing jurisdiction of all proceedings begun before tbe Commission for compensation in accordance with its terms. Tbe Superior Court has jurisdiction only when a party to a proceeding has appealed to said court on matters of law involved therein. Findings of fact made by tbe Commission are conclusive and when supported by evidence, cannot be reviewed by tbe Superior Court. We think it clear that tbe Commission has tbe power, in a proper case, and in accordance with its rules and regulations, to grant a rehearing of a proceeding pending before it, and in which it has made an award, on tbe ground of newly discovered evidence. See Byrd v. Lumber Co., 207 N. C., 253, 176 S. E., 572, and Ruth v. Carolina Cleaners, Inc., 206 N. C., 540, 174 S. E., 445.

Pursuant to tbe order of Judge Erizzelle, at June Term, 1933, of tbe Superior Court of Wayne County, tbis proceeding was pending before tbe North Carolina Industrial Commission at tbe time tbe order for a rehearing on tbe ground of newly discovered evidence was made by tbe Commission. Tbe order of Judge Erizzelle was in compliance with tbe order of tbis Court on tbe former appeal. When tbe proceeding was remanded from tbe Superior Court, where it was pending on appeal, to tbe Industrial Commission, although for a specific purpose, as stated in tbe order, the Superior Court surrendered its jurisdiction, and the Industrial Commission acquired jurisdiction for all purposes. See Finlayson v. Kirby, 127 N. C., 222, 37 S. E., 223.

There was error in the judgment reversing the order of the Industrial Commission for a rehearing- of the proceeding on the ground of newly discovered evidence, and in affirming the award made by the Commission on 6 October, 1931. The appeal from the order of the Commission to the Superior Court should have been dismissed. The judgment is

Reversed.