{ "id": 8574341, "name": "DONALD RAY MASON and RELIANCE INSURANCE COMPANY v. NORTH CAROLINA STATE HIGHWAY COMMISSION", "name_abbreviation": "Mason v. North Carolina State Highway Commission", "decision_date": "1968-02-28", "docket_number": "No. 770", "first_page": "36", "last_page": "43", "citations": [ { "type": "official", "cite": "273 N.C. 36" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "57 S.E. 2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630523 ], "opinion_index": 0, "case_paths": [ "/nc/231/0477-01" ] }, { "cite": "78 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611556 ], "opinion_index": 0, "case_paths": [ "/nc/238/0468-01" ] }, { "cite": "85 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612454 ], "opinion_index": 0, "case_paths": [ "/nc/241/0473-01" ] }, { "cite": "146 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561099 ], "opinion_index": 0, "case_paths": [ "/nc/266/0440-01" ] }, { "cite": "146 S.E. 2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561345 ], "opinion_index": 0, "case_paths": [ "/nc/266/0513-01" ] }, { "cite": "159 S.E. 2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574296 ], "opinion_index": 0, "case_paths": [ "/nc/272/0680-01" ] }, { "cite": "79 S.E. 690", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "163 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272100 ], "opinion_index": 0, "case_paths": [ "/nc/163/0431-01" ] }, { "cite": "86 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610103 ], "opinion_index": 0, "case_paths": [ "/nc/242/0107-01" ] }, { "cite": "121 S.E. 2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568616 ], "opinion_index": 0, "case_paths": [ "/nc/255/0281-01" ] }, { "cite": "179 S.E. 801", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598363 ], "opinion_index": 0, "case_paths": [ "/nc/208/0178-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "176 S.E. 572", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624960 ], "opinion_index": 0, "case_paths": [ "/nc/207/0253-01" ] }, { "cite": "179 S.E. 799", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598698 ], "opinion_index": 0, "case_paths": [ "/nc/208/0186-01" ] }, { "cite": "4 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "216 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599632 ], "opinion_index": 0, "case_paths": [ "/nc/216/0306-01" ] } ], "analysis": { "cardinality": 703, "char_count": 18976, "ocr_confidence": 0.589, "pagerank": { "raw": 3.266963466212276e-07, "percentile": 0.8698624900525088 }, "sha256": "3f5cad5f761a1b3d36d6369f79eac9a742003d07ae6c8bb76c71fa9af049cc29", "simhash": "1:8512bfe0502a4c46", "word_count": 3207 }, "last_updated": "2023-07-14T20:52:42.272754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HusKINS, J., took no part in the consideration or decision of this case." ], "parties": [ "DONALD BAY MASON and RELIANCE INSURANCE COMPANY v. NORTH CAROLINA STATE HIGHWAY COMMISSION." ], "opinions": [ { "text": "LAKE, J.\nThe record does not contain an express ruling by the majority of the Full Commission upon the motion of the claimants for the taking of further evidence and for permission to amend their affidavits. However, the memorandum of dissent by the unidentified commissioner, which is a part of the record, leads inescapably to the conclusion that the Full Commission did consider this motion and refused to allow it.\nG.S. 143-291 provides that the Industrial Commission \u201cis hereby constituted a court for the purpose of hearing and passing upon tort claims\u201d against this defendant and other agencies of the State. G.S. 143-293 provides that an appeal from the commission to the superior court \u201cshall be for errors of law only * * * and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them.\u201d Thus, the Industrial Commission is the trial court for such claims.\nIn Tindall v. Furniture Co., 216 N.C. 306, 4 S.E. 2d 894, we said;\n\u201cIn the Superior Court, upon appeal from an award by the Industrial Commission, the court has power in proper case to order a rehearing, and to remand the proceeding to the Industrial Commission, on the ground of newly discovered evidence, but this is a matter within the sound discretion of the court.\u201d\nIn that case, as here, the motion for leave to offer new or additional evidence was made in and denied by the Industrial Commission. The superior court affirmed the award of the commission and this Court affirmed the judgment of the superior court, citing as authority for the above quoted statement Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799 and Byrd v. Lumber Co., 207 N.C. 253, 176 S.E. 572.\nIn the Butts case the Industrial Commission, while the matter was pending before it, allowed a motion for rehearing on the ground of newly discovered evidence. On appeal from such order the superior court reversed the commission. This Court held that was error and said that the appeal from the order of the commission should have been dismissed. Thus, the Butts case is not authority for the proposition that the superior court may reverse the ruling of the Industrial Commission upon such a motion.\nIn the Byrd case, the motion for a further hearing by the commission was made originally in the superior court on the ground of evidence discovered subsequent to the appeal from the commission to that court. The superior court allowed the motion and this Court affirmed, saying that this Court has the power to consider a motion for a new trial \u201cof an action pending here on appeal, on the ground of newly discovered evidence, and in a proper case to grant the motion.\u201d This Court further said in the Byrd case: \u201cWhether the judge of the Superior Court shall exercise this power in any proceeding pending in said court rests upon his discretion. His action, therefore, is ordinarily not subject to review by this Court.\u201d Thus, the Byrd case is not authority for the proposition that the superior court may reverse a denial by the Industrial Commission of such motion made before it while the proceeding was still pending before the commission.\nIn Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E. 2d 857, this Court construed a motion, originally filed before the Industrial Commission, as a motion for a further hearing for newly discovered evidence and directed that the matter be \u201creturned to the Industrial Commission, which will determine, according to its own rules and the legal principles applicable to newly discovered evidence, whether it will grant plaintiff the requested hearing with reference to his diminished earning capacity.\u201d There, this Court said the proceeding had been heard by the Industrial Commission under a \u201cmisapprehension of applicable principles of law,\u201d the commission having treated and passed upon the claimant\u2019s motion as a motion to reopen for change of condition rather than a motion for further hearing on the ground of newly discovered evidence. Thus, in the Hall case there was no reversal of a denial by the commission of a motion for further hearing on the ground of newly discovered evidence, but a remand to the commission for its determination of such motion.\nIn Thompson v. Funeral Home, 208 N.C. 178, 179 S.E. 801, it was held that the superior court may grant a motion, originally made in the superior court, to remand a workmen\u2019s compensation proceeding to the commissioner in order that the commission may hear evidence and to make a finding upon a jurisdictional question. Connor, J., there said: \u201cWhen the proceeding has been remanded to the Industrial Commission, the Commission will determine, in accordance with its rules, whether it will hear evidence tending to show the number of employees in the employment of the defendant employer * * * and if it shall hear evidence offered by the plaintiffs, * * * will have the power to make such findings a part of the record in this proceeding. * * * These findings of fact being jurisdictional, will be subject to review by the Superior Court.\u201d The Court did not say that a denial by the commission of a motion before it to hear further evidence upon a matter properly before it is subject to reversal by a reviewing court.\nIn Webb v. Gaskins, 255 N.C. 281, 121 S.E. 2d 564, this Court, speaking through Parker, J., now C.J., said:\n\u201cAs long as the trial court has jurisdiction over a cause, it seems to be thoroughly settled law in this nation, including this jurisdiction, that a motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge, and that his ruling thereon may not be made ground for reversal on appeal unless the appellant can show a manifest abuse of judicial discretion.\u201d\nIn Frye & Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E. 2d 790, Johnson, J., speaking for the Court, said:\n\u201c[A] motion for new trial on the ground of new evidence, discovered during the trial term, is addressed to the discretion of the trial judge, and his decision, whether granting or refusing the motion, is not reviewable in the absence of an abuse of discretion.\u201d\nThere is nothing in the present record to show that the Industrial Commission, in denying the motion for a further hearing for the introduction of additional evidence, abused the discretion thus vested in it as the trial court or that it failed, in passing upon such motion, to observe the prerequisites for the granting thereof prescribed in Johnson v. R. R., 163 N.C. 431, 79 S.E. 690, and quoted with approval in Bailey v. Department of Mental Health, 272 N.C. 680, 159 S.E. 2d 28, decided February 2, 1968, and in McCulloh v. Catawba College, 266 N.C. 513, 146 S.E. 2d 467.\nNeither the motion filed in the Industrial Commission nor the judgment of the superior court specifies what new evidence the Industrial Commission is to receive and consider. The superior court has no general power to remand a matter of this nature to the Industrial Commission for the taking of additional evidence and the finding of further facts. Bailey v. Department of Mental Health, supra.\nThe record shows that Howard Vernon Moore testified that he was the employee in actual supervision of this repair project and that he was cross examined by the claimants. The record further shows that Moore testified Perry was present in the hearing room and was the employee who looked after placing the flambeaus. Perry was not called as a witness by the claimants and there is nothing to indicate that they sought a temporary recess in order to confer with him.\nThe affidavit required by G.S. 143-297 to be filed by a claimant under the Tort Claims Act is the equivalent of a complaint in an ordinary tort action. The allowance of an amendment of a pleading, after the expiration of the time allowed therefor by statute,' is ordinarily a matter resting in the sound discretion of the trial court and its ruling thereon is not subject to review upon an appeal in the absence of a clear showing of abuse of such discretion. Moore v. Insurance Co., 266 N.C. 440, 146 S.E. 2d 492; Terrace, Inc. v. Indemnity Co., 241 N.C. 473, 85 S.E. 2d 677; Motor Co. v. Wood, 238 N.C. 468, 78 S.E. 2d 391. The record does not show an abuse of discretion by the Industrial Commission, the trial court in this instance, in its denial of the motion by the claimants to amend their affidavit.\nBailey v. Department of Mental Health, supra, was a proceeding under the Tort Claims Act. This Court, speaking through Branch, J., said:\n\u201cThe scope of the reviewing court\u2019s inquiry in cases appealed from the Industrial Commission is succintly stated by Ervin, J., in the case of Henry v. Leather Co., 231 N.C. 477, 57 S.E. 2d 760, as follows:\n\u201c \u2018In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) whether or not there was any competent evidence before 'the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision.\u2019 \u201d\nThe order of the superior court allowing the amendments to the affidavits and remanding the matter to the North Carolina Industrial Commission with directions to take newly discovered evidence and additional evidence, to make additional findings, and conduct a rehearing in accordance with the judgment of the superior court, was error and is hereby reversed. The superior court not having passed upon the remaining exceptions of the claimants to the order of the Industrial Commission, which exceptions relate to the findings of fact and to the conclusion of law, the matter is hereby remanded to the superior court for its determination of whether such findings are supported by competent evidence and, if so, whether such findings support the conclusion of law made by the commission and its denial of the claims.\nReversed and remanded.\nHusKINS, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "LAKE, J." } ], "attorneys": [ "Attorney General Bruton, Deputy Attorney General Lewis, .\u00e1s-sistant Attorney General Rosser and Staff Attorney Parker for defendant appellant.", "Brooks and Brooks for plaintiff appellees." ], "corrections": "", "head_matter": "DONALD BAY MASON and RELIANCE INSURANCE COMPANY v. NORTH CAROLINA STATE HIGHWAY COMMISSION.\n(Filed 28 February, 1968.)\n1. State \u00a7 5c\u2014\nThe Industrial Commission is constituted the trial court for the hearing of tort claims against the State. G.S. 148-291.\n2. State \u00a7 5f\u2014\nA motion for a further hearing on the ground of introducing additional or newly discovered evidence rests in the sound discretion of the Industrial Commission and its ruling thereon is not reviewable in the Superior Court in the absence of an abuse of discretion by the Commission.\n3. State \u00a7 5c\u2014\nThe affidavit filed by a claimant pursuant to the Tort Claims Act, G.S. 143-297, is in the nature of a complaint in an ordinary tort action, and the allowance of an amendment thereto after the expiration of the time allowed by statute rests in the sound discretion of the Industrial Commission and its ruling thereon is not subject to review in the absence of an abuse of such discretion.\nHoskins, L, took no part in the consideration or decision of this case.\nAppeal by defendant from Carr, J., at the June 1967 Civil Session of Dueham, docketed and argued as No. 770 at Fall Term 1967.\nThis is a proceeding instituted before the North Carolina Industrial Commission under the Tort Claims Act, G.S. 143-2S1 et seq. It arises out of damage to the automobile, trailer and boat of Donald Ray Mason, alleged to have occurred at about midnight on 14 July 1966, at which time the automobile, driven by Mason, together with the attached trailer and boat, plunged into an excavation in Highway 55 immediately south of Durham.\nReliance Insurance Company claims as subrogee of Mason, having paid to him part of his alleged damages by reason of a policy of insurance issued by it to him. The affidavits filed by the claimants are substantially identical, there being no conflict between the two claimants. They assert that the damage was proximately caused by the negligence of the defendant and of K. M. Duncan, the defendant\u2019s Road Maintenance Supervisor for the area, this alleged negligence consisting of the cutting out of a large segment of the pavement and bed of the highway, in the course of repairs thereto, and leaving the excavation without visible warnings. The defendant filed answers denying all material allegations of the affidavits, except that the accident occurred at the time alleged, and pleading contributory negligence by Mason.\nThe matter was heard by Deputy Commissioner Thomas. Evidence was introduced both by the claimant and by the defendant concerning the presence or absence of a barricade, flambeaus and warning signs at and upon the approach to the excavation.\nOne of the witnesses offered by the defendant was Howard Vernon Moore, its Area Foreman. He testified that he was at the scene of the occurrence shortly after 5 p.m. and that certain signs and barricades were then in place. He further testified:\n\u201cI know Mr. Kirk Duncan. He is the Durham County Maintenance Supervisor. To the best of my knowledge, he was the supervisor in charge of this job or work. I am the foreman in charge of such work as this with the State Highway Commission. The State Highway Maintenance Forces were doing the repair work on this road rather than some contractor. It was under my supervision and of course I am under Mr. Duncan\u2019s supervision. My crew did the work on it '* * * Mr. Perry [present in the hearing room] looks after placing the flam-beaus * *\nPerry was not called as a witness by either party.\nThe Hearing Commissioner entered an order denying the claim, which order contained his findings of fact, including the following:\n\u201c6. The hole had been cut out during the day on July 14, 1966 by defendant\u2019s employees under the direction and supervision of Howard V. Moore, a foreman in defendant\u2019s maintenance department in Durham County, North Carolina. Moore and the crew departed from the area about 5 p.m., leaving a flambeau burning and a barricade at each end of the hole with a sign at the south end of the hole indicating 'one lane road ahead.\u2019 An additional sign was located near Alston Avenue and another sign about 500 feet south of the hole indicating 'construction work ahead\u2019.\u201d\n* *\n\u201c8. The speed limit of N.C. 55 was 55 miles per hour. Plaintiff Mason aproached the hole in question at a speed of about 50 miles per hour. There was no light burning at the south end of the hole and a light burning at the north end of the hole was burning feebly and was not sufficient to warn plaintiff Mason of the presence of the hole.\u201d\n\u201c10. There is no evidence of a negligent act on the part of K. M. Duncan, admittedly road maintenance supervisor for defendant in Durham County, who plaintiffs allege was negligent in connection with their claim.\u201d\nUpon the foregoing findings of fact, the Hearing Commissioner made, and stated in his order, the following conclusion of law:\n\u201cPlaintiffs allege negligence on the part of K. M. Duncan, who admittedly was road maintenance supervisor for defendant in Durham County, North Carolina. There being no evidence of a negligent act on the part of Duncan, plaintiffs\u2019 claim must be denied.\u201d\nThe claimants then appealed to the Full Commission. They excepted to the above Findings of Fact 6 and 10, among others, for the reason that the Hearing Commissioner failed to find and determine whether the claims arose as a result of a negligent act of a State employee whose act was imputed to K. M. Duncan. They also excepted to the Hearing Commissioner\u2019s conclusion of law.\nPrior to the hearing by the Full Commission, the claimants filed a motion that additional evidence be taken and that they be allowed to amend their affidavits to make them conform to the evidence. In this motion they assert that at the time the original affidavits were filed, they did not know that there were certain other named employees of the defendant employed in a supervisory or responsible capacity upon this project, that the excavation was done by inmates of the Prison Department under the supervision of these employees, or that another employee, Cornelius Perry, had the duty of checking on flambeaus and barricades to see that they were in good working condition and properly maintained. They further assert in this motion that, prior to the hearing, their counsel conferred with K. M. Duncan concerning State employees who might have been negligent in this matter, that he was not informed by Duncan as to the names or duties of such persons and that he then understood that all State employees who might have been negligent in the matter \u201cwould be stipulated to\u201d at the hearing and, in event negligence by the defendant was found, \u201csaid negligence of said employees would be imputed to the said K. M. Duncan.\u201d\nTen weeks after the filing of the foregoing motion, the matter was heard upon argument before the Full Commission. The Full Commission adopted as its own the findings of fact and the conclusion of law of the Hearing Commissioner and affirmed his order. There is nothing in the record to indicate any ruling by the Full Commission upon the foregoing motion except the following notation upon its order:\n\u201cIn my opinion the motion of plaintiffs\u2019 counsel to take newly discovered evidence should be allowed and I, therefore, respectfully dissent.\u201d\nThe dissenting commissioner is not identified in the record.\nThe claimants appealed from the order of the Full Commission to the superior court, their exceptions being to the conclusion of law of the Hearing Commissioner, so adopted by the Full Commission, and to certain of his findings of fact, so adopted by the Full Commission, including the above quoted Findings 6 and 10, and a further exception to \u201cthe failure of the Full Commission to rule upon the plaintiffs\u2019 motion to take additional evidence and to amend their affidavits.\u201d\nThe superior court entered judgment, stating that it was of the opinion that the motion of the claimants should be allowed and that the findings of the commission \u201care insufficient for a proper determination of the questions involved.\u201d The court did not specify wherein it deemed the findings insufficient. The superior court thereupon ordered:\n\u201c1. That the motion to take newly discovered evidence and additional evidence and the motion to amend * * * the affidavits * * * is hereby granted.\n\u201c2. That the decision and order of the North Carolina Industrial Commission be and is hereby remanded to the North Carolina Industrial Commission for additional findings in accordance with this Judgment.\n\u201c3. That this cause be and the same is hereby remanded to the North Carolina Industrial Commission for re-hearing in accordance with this Judgment.\u201d\nFrom the foregoing judgment of the superior court, the defendant appealed, assigning as error each of the court\u2019s said conclusions and each portion of its order.-\nAttorney General Bruton, Deputy Attorney General Lewis, .\u00e1s-sistant Attorney General Rosser and Staff Attorney Parker for defendant appellant.\nBrooks and Brooks for plaintiff appellees." }, "file_name": "0036-01", "first_page_order": 72, "last_page_order": 79 }