Tucker v. NORTH CAROLINA STATE HIGHWAY & PW COM'N

100 S.E.2d 514 (1957)

247 N.C. 171

D. H. TUCKER v. NORTH CAROLINA STATE HIGHWAY & PUBLIC WORKS COMMISSION.

No. 379.

Supreme Court of North Carolina.

November 20, 1957.

*518 George B. Patton, Atty. Gen., R. Brookes Peters, Asst. Atty. Gen., Parks H. Icenhour, Staff Atty., Raleigh, for the State.

Gaither M. Beam, Louisburg, for plaintiff, appellee.

HIGGINS, Justice.

The defendant brings the case here upon the ground the trial court, as stated in the brief, "erred not only in refusing a proper judgment, but also in entering an order remanding the cause to the Industrial Commission when the decision and order of the Commission should have been affirmed. Not only did his Honor refuse the tendered judgment but entered an order allowing plaintiff to amend his affidavit to name R. W. Moore as the negligent employee. * * * This cause was tried before the Industrial Commission on the plaintiff's allegations that John Billie Harris, supervisor under Bob Moore, was the employee * * * against whose negligence the defendant was called upon to defend * * The amendment permits the defendant to state a different cause of action."

In considering the validity of the defendant's contentions, it must be borne in mind that the purpose of the statute requiring the negligent employee to be named is to enable the department of the State against which the claim is made to investigate, not all of its employees, but the particular ones actually involved. Floyd v. North Carolina State Highway & Public Works Commission, 241 N.C. 461, 85 S.E.2d 703. The claim as filed is against the State Highway & Public Works Commission, arising by reason of the negligence of John Billie Harris, supervisor under Bob Moore, superintendent. Conceding that Bob Moore is not charged as being a negligent employee, John Billie Harris, supervisor under Bob Moore, is so charged. The name of the negligent employee and his position (supervisor) are both designated. At the beginning of the hearing both parties stipulated that R. W. (Bob) Moore was Supervisor for Franklin County and was in charge of maintenance at the time of the accident. Thereafter, the plaintiff, at least, dismissed Harris from further consideration.

We hold the stipulation of the parties was equivalent to and served all the purposes of an amendment to the claim. The stipulation eliminated Harris because he was not the supervisor and included R. W. Moore because he was. The amendment in the Superior Court substituting Moore for Harris added nothing to the claim.

The accident was caused by obstructions at either end of the narrow bridge. The Industrial Commission found the pavements at both places had been broken or removed and that instead of trenches, as stated in the claim, mounds of earth had been built up eight or ten inches high with the result "that from a distance the road had the appearance of being level at this point, and it was only when one was very close to the bridge that the mound could be detected; that there were no warning signs of any kind on the road leading to the bridge; and that said road at this point had been in this condition for at least 10 days prior to the accident." The location of the obstructions was fixed by the plaintiff's claim. Whether the broken pavement left a depression below the surface or an elevation above it that could not be discovered until one was "very close" would seem to be too immaterial to require amendment. This amendment added nothing to the claim.

The defendant's brief makes clear the defendant's view that only the negligence of Harris was involved. In this connection it must be conceded there was no evidence of negligence on the part of Harris. If the Commission took the same view the defendant did, that only the negligence of Harris was involved, it acted under a *519 mistaken view of the law. "When this occurs, the usual practice with us is to remand the case for another hearing." Wilson Realty Co. v. City & County Planning Board, 243 N.C. 648, 92 S.E.2d 82, 88. The claim and the evidence involved Moore's negligence.

The accident occurred at a time when the statute made contributory negligence a defense, Ch. 400, Session Laws of 1955, and not a part of the plaintiff's cause of action, Floyd v. North Carolina State Highway & Public Works Commission, supra. The accident occurred during that 55-day period when the law permitted recovery "when the claim arose as the result of a negligent act or omission on the part of a State employee." Chapters 400 and 1361, Session Laws of 1955. Flynn v. North Carolina State Highway & Public Works Commission, 244 N.C. 617, 94 S.E.2d 571.

This Court is unable to determine whether the Industrial Commission's finding of fact No. 6 involved the negligence (acts or omissions) of Harris only, or whether the finding also involved negligence on the part of R. W. Moore. The record does not answer this question. Only the Industrial Commission can give the answer, and the case must go back to the Commission for that answer and for any modification of the conclusion and of the award made necessary by such finding.

The order appealed from is not a final judgment. Appeal does not lie unless it deprives the appellant of some substantial right which might be lost if the order is not reviewed before final judgment. G.S. § 1-277. Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377. The order appealed from states: "That the stipulated facts and additional findings of fact Nos. 1, 2, and 3, supported by the evidence, compel the conclusion that a dangerous condition existed on the road or highway referred to in the complaint for a period of at least 10 days prior to April 20, 1955; that prior to said date nothing was done to correct said condition or to warn those traveling upon said road of the condition, and that the plaintiff's injuries and damages proximately resulted from said dangerous condition. * * * Under the fact found it is the opinion of the court that whether or not R. W. Moore, the named employee, was negligent would depend upon whether or not he had notice, or in the exercise of ordinary care should have known of the dangerous condition of the said highway."

The function of the superior court judge is to "review alleged errors of law made by the Commission and presented * * * by the exceptions entered. He should overrule or sustain each and every exception addressed to alleged errors of law thus designated, so that the party aggrieved by his rulings may except thereto and present the question to this Court for review." Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467, 470. "The findings of fact of the Commission shall be conclusive if there is any competent evidence to support them." G.S. § 143-293; Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173.

Negligence is a mixed question of fact and law. Lowe v. Department of Motor Vehicles, 244 N.C. 353, 93 S.E.2d 448. On a mixed question of fact and law, the finding of the Industrial Commission is conclusive if there is sufficient evidence to sustain the facts involved. Lewter v. Abercrombie Enterprises, 240 N.C. 399, 82 S.E.2d 410. The appellant's exception to the inclusion of the above quoted portion of the Superior Court's order is sustained. The Industrial Commission must be left free to make its own findings. If the prior hearing did not relate to and involve the question of Moore's negligence, then the Industrial Commission should re-open the inquiry as to that question, giving both parties opportunity to be heard.

The order of the Superior Court is modified by striking therefrom all except the *520 direction that the case go back to the Industrial Commission for a finding as to the negligence of R. W. Moore and for any modification of the award made necessary by such finding. The order of the Superior Court to the extent here indicated is

Modified and affirmed.