Beaver v. Crawford Paint Co., 240 N.C. 328 (1954)

May 19, 1954 · Supreme Court of North Carolina
240 N.C. 328


(Filed 19 May, 1954.)

I. Appeal and Error § 24—

An assignment of error must ordinarily be based upon an exception duly and timely taken, and an exception to tbe signing of tbe judgment will not support an assignment of error purporting to challenge tbe sufficiency of tbe evidence to support tbe findings of fact.

2. Appeal and Error § 6c (3) —

An exception to the judgment presents tbe sole question of whether the facts found are sufficient to support tbe judgment, and does not present the sufficiency of the evidence to support the findings of fact.

3. Appeal and Error § 6c (3)—

In the absence of exception, the findings of fact are presumed to be supported by evidence and are binding on appeal.

4. Master and Servant § 40g—

Tbe findings of fact of tbe Industrial Commission held sufficient to support an award of compensation for hernia.

Appeal by defendants from Sharp, Special Judge, October Term, 1953, of Guileobd (Greensboro Division).

This is a proceeding to recover compensation under tbe provisions of tbe Workmens Compensation Act.

Tbe full Commission, on appeal by tbe defendants from tbe bearing commissioner, set aside tbe findings of fact, conclusions of law and tbe award of the bearing commissioner, and, among other things, found tbe following facts: That on 12 May, 1952, and for approximately five years prior thereto, tbe claimant was employed by tbe Crawford Paint Company as a painter; that on tbe above date he undertook to remove a spray gun tank, weighing approximately 65 pounds, from a trailer by standing on tbe ground to the rear of tbe trailer and reaching over into the bed of the trailer; that be lifted tbe tank high enough to clear tbe board around tbe bed of tbe trailer which was about waist high; that be then twisted to one side to lower tbe tank to tbe ground; that this was tbe customary manner and method used by tbe claimant in removing tbe spray tank; that be bad removed tbe spray tank many times in tbe same manner before; that as be started to lower tbe tank on this occasion and in this position, be felt a sudden sharp pain in bis right groin; that be placed tbe tank on tbe ground at bis side; that tbe pain was so severe that be was unable to work for approximately half an hour ;■ . . . that tbe claimant continued to have pain in bis right side but continued working; that *329on 15 May, 1952, three days after the events above described, a small knot or swelling developed in bis right groin and that this was caused by a hernia. That the claimant’s hernia appeared suddenly; that it was accompanied by pain; that it immediately followed an accident; that there was an injury as hereinabove described resulting in hernia; and that it did not exist prior to the accident described on 12 May, 1952. That the claimant continued working with some moderate pain until about 14 July, 1952; that he lost no time as a result of his hernia until that date; that he underwent an operation for the correction of his hernia on 14 July, 1952; that he was temporarily totally disabled as a result thereof until 3 September, 1952; and that he has had no disability as a result thereof since that time.

Upon the above findings of fact the Commission concluded as a matter of law that the claimant sustained an accident that arose out of and in the course of his employment, and awarded compensation as provided by law.

The defendants appealed to the Superior Court and when the matter came on for hearing' the court, on a review of the record, affirmed the award of the Industrial Commission and entered judgment accordingly. The defendants appeal, assigning error.

Adam Tounce for plaintiff, appellee.

Jordan & Wright for defendants, appellants.


The only exception entered in the Superior Court was to the signing of the judgment. However, the appellant assigns as error the ruling of the court below in affirming the award of the Commission, “for that the findings of fact and conclusions of law by the full Commission are not supported by the competent evidence offered.” They likewise assign as error the ruling of the court below in affirming the award of the Commission, “for that the competent evidence offered is insufficient to establish that the injury alleged Avas by accident within the meaning of the North Carolina Workmen’s Compensation Act.”

An exception to the signing of a judgment will not support an assignment of error, purporting to challenge the sufficiency of the evidence to support the findings of fact. Such exception presents one question and one question only, and that is whether the facts found are sufficient to support the judgment. Donnell v. Cox, ante, 259; Glace v. Throwing Co., 239 N.C. 668, 80 S.E. 2d 759; Wyatt v. Sharp, 239 N.C. 655, 80 S.E. 2d 762; Worsley v. Rendering Co., 239 N.C. 547, 80 S.E. 2d 467; Fox v. Mills, Inc., 225 N.C. 580, 35 S.E. 2d 869; Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609.

*330Moreover, it is the general rule that an assignment of error not based on an exception duly and timely taken, will not be considered on appeal. S. v. Taylor, ante, 117, 80 S.E. 2d 917, and cited eases.

In our opinion, the evidence disclosed on the present record does not support some of the findings of fact. Even so, where there is no exception taken to such findings, they are presumed to be supported by the evidence and are binding on appeal. Wyatt v. Sharp, supra; Greene v. Board of Education, 237 N.C. 336, 75 S.E. 2d 129; Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488; Wilson v. Robinson, 224 N.C. 851, 32 S.E. 2d 601; Wood v. Bank, 199 N.C. 371, 154 S.E. 623; Sturtevant v. Cotton Mills, 171 N.C. 119, 87 S.E. 992.

It would seem that the facts as found are sufficient to support the judgment. Edwards v. Publishing Co., 227 N.C. 184, 41 S.E. 2d 592; Smith v. Creamery Co., 217 N.C. 468, 8 S.E. 2d 231. Consequently, this decision is made to rest upon a question of appellate procedure. Therefore, it becomes a precedent in that respect only and not upon the merits of plaintiff’s claim.

The judgment of the court below is