Crawford v. Wayne County Board of Education

164 S.E.2d 748 (1968)

3 N.C. App. 343

Wayne CRAWFORD, b/n/f Mary V. Crawford v. WAYNE COUNTY BOARD OF EDUCATION.

No. 688IC298.

Court of Appeals of North Carolina.

December 31, 1968.

Certiorari Allowed March 5, 1969.

*750 Braswell & Strickland, by Roland C. Braswell, Goldsboro, for plaintiff appellee.

George K. Freeman, Jr., Goldsboro, and Atty. Gen. T. Wade Bruton by Staff Atty., Richard N. League. Raleigh, for defendant appellant.

BRITT, Judge.

At the outset of their brief, defendant's counsel state: "This appeal is based primarily on procedural and technical points, and the facts of the occurrence and legal inferences from them resulting in the claim are only of secondary interest. The finding of negligence is not appealed to this Court."

The first question presented is whether the absence of the name of the allegedly negligent employee in the affidavit filed pursuant to G.S. § 143-300.1 results in a failure of the Industrial Commission to acquire jurisdiction.

It has been held that it is necessary to recovery that the affidavit of the claimant set forth the name of the allegedly negligent employee and the acts of negligence relied upon. Brooks v. University of North Carolina, 2 N.C.App. 157, 162 S.E.2d 616; Floyd v. North Carolina State and Public Highway Works Commission, 241 N.C. 461, 85 S.E.2d 703. It also appears that, as a general rule, "[a] pleading may not be amended so as to confer jurisdiction in a particular case stated; but there may be an amendment to show that the jurisdiction exists." 1 McIntosh, N.C. Practice 2d, § 1285, p. 713.

In every proceeding before the Industrial Commission, determination of jurisdiction is the first order of business. Determinative facts upon which rights of parties are made to rest must be found from judicial admissions made by the parties, facts agreed, stipulations entered into and noted at the hearing, and evidence offered in open court, after all parties have been given full opportunity to be heard. *751 Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215. See also Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 152 S.E.2d 533; Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777; and 5 Strong, N.C. Index 2d, Master and Servant, § 85, p. 455.

In Maley v. Thomasville Furniture Co., 214 N.C. 589, 200 S.E. 438, the court, in dealing with the reception of hearsay evidence, stated:

"The Industrial Commission is an administrative board with quasi judicial functions. The manner in which it transacts its business is a proper subject of statutory regulation and need not necessarily conform to court procedure except where the statute so requires, or where, in harmony with the statute, or where it fails to speak, the court of last resort, in order to preserve the essentials of justice and the principles of due process of law, shall consider rules similar to those observed in strictly judicial investigations in courts of law to be indispensable or proper. * * *"

To the same effect, see 5 Strong, N.C. Index 2d, Master and Servant, § 93, p. 476.

It remains to apply these principles to the case before us. The name Milton Leroy Batten (also referred to herein as Roy Batten) did not appear anywhere on the claim at the time it was filed. In Tucker v. North Carolina State Highway & Public Works Commission, 247 N.C. 171, 100 S.E.2d 514, while the name R. W. (Bob) Moore did appear in the affidavit, it did not appear as the allegedly negligent employee. A stipulation at the hearing was allowed to correct this defect. In the present case, the attorney for the defendant School Board, having demurred, declared his willingness to stipulate that Roy Batten was an employee of the Board and that he was paid from the nine-months school fund. Thereupon, the hearing officer overruled the demurrer and allowed claimant's motion to amend his affidavit to allege the negligence of Milton Leroy Batten. At the same time, counsel for the defendant admitted that the School Board had not been taken by surprise by claimant's motion to amend.

The knowledge that the Industrial Commission is not expected to perform in its proceedings as strictly as a court, together with a conviction that the amendment has no effect on the essentials of justice in this case, when combined with an understanding of the discretion permitted trial judges in this State with regard to amendments, leads us to the conclusion that the amendment served the purpose of showing the existence of jurisdiction in the case, rather than conferring it. It has been held that an amendment allowed in open court, appearing in the record, is self-executing, though the better practice is to reduce it to writing. State v. Yellowday, 152 N.C. 793, 67 S.E. 480; Holland's Heirs v. Crow, 34 N.C. 275; Shearin v. Neville, 18 N.C. 3; Ufford's Adm'x v. Lucas, 9 N.C. 214.

The defendant next contends that the Industrial Commission erred in allowing Commissioner Shuford to preside at the hearing in which defendant put on the bulk of its evidence, when the first hearing was held and the opinion and award entered by Deputy Commissioner Thomas. The record discloses that Commissioner Shuford served with the full Commission in reviewing the findings and affirming the order of Deputy Commissioner Thomas. Defendant joined in requesting the additional day of hearing and had notice of the identity of the presiding officer prior to the second hearing. It made no objection to Commissioner Shuford's conducting the second hearing, either at or before the time of the hearing. Without conceding that this procedure was improper, we conclude that defendant waived any objection thereto. This conclusion is supported, on the point of waiver, by Ostrowski v. Zolnierowicz, 125 N.J.L. 516, 16 A.2d 803; Worden v. Alexander, 108 Mont. 208, 90 P.2d 160, and 48 C.J.S. Judges § 56, p. 1021. Furthermore, as indicated in the *752 quoted statement from defendant's brief, the facts in this case are not seriously controvertedeven the finding of negligence is not challenged.

Finally, defendant contends that the Commission erred in its conclusion of law that the claimant was conclusively presumed incapable of contributory negligence, contending that G.S. § 143-291 leaves no room for the exclusion of a minor claimant from its operation. It is not necessary for us to pass on this question, as the Commission found as a fact that there was no contributory negligence in this case, and the finding, being supported by competent evidence, is binding on us. Eaton v. Klopman Mills, Inc., 2 N.C.App. 363, 163 S.E.2d 17.

Contained in the record is a written demurrer evidently filed by the defendant with the Industrial Commission on 12 January 1968. The decision and order of Deputy Commissioner Thomas, filed 16 February 1968, makes no reference to the written demurrer; neither does the opinion and award for the full Commission filed 7 May 1968. Nevertheless, defendant filed an almost identical demurrer with this court on 26 November 1968. For the reasons hereinbefore stated, the demurrer filed in this court is overruled, and we hold that the defendant was not prejudiced by the failure of the Industrial Commission to rule on the written demurrer which it filed with the Commission.

The opinion and award of the Industrial Commission appealed from is

Affirmed.

BROCK and FRANK M. PARKER, JJ., concur.