Byrd v. Gloucester Lumber Co.

176 S.E. 572, 207 N.C. 253, 1934 N.C. LEXIS 433

Opinion

OonNob, J.

The award of the Industrial Commission in this proceeding, made 11 February, 1930, and, on the facts found by the Commission, denying compensation to the plaintiff, was conclusive as to all questions of fact involved in the proceeding and determined by the Commission. It is so expressly provided by statute. N. C. Code of 1931, sec. 8081 (ppp).

On plaintiff’s appeal from the award to the Superior Court, only questions of law involved in the proceeding and decided by the Industrial Commission could be considered. This is also expressly so provided by statute. N. C. Code of 1931, sec. 8081 (ppp). The jurisdiction of the Superior Court is limited to a consideration of questions of law only.

There is no provision in the North Carolina Workmen’s Compensation Act authorizing the Superior Court to consider a motion for a rehearing by the Industrial Commission of a, proceeding for compensation, on the ground that since the docketing of an appeal from an award of the Commission, a party to the proceeding has discovered new evidence which supports his contention as to the facts found by the Commission adversely to him, and to remand the proceeding to the Commission for a rehearing.

For this reason the appellants in the instant case contend that there was error in the refusal of the judge of the Superior Court to dismiss the motion of the plaintiff, and in the order remanding the proceeding to the Industrial Commission for a rehearing. This contention is not sustained. The judge had the power to consider plaintiff’s motion and, on the facts found by him, in his discretion to grant the motion.

It is well settled that this Court, although its jurisdiction is limited by the Constitution of North Carolina to the review, upon appeal, of decisions of the Superior Court upon matters of law or legal inference, has the power to consider a motion for a new trial of an action pending here on appeal, on the ground of newly discovered evidence, and in a proper case to grant the motion. Moore v. Tidwell, 194 N. C., 186, 138 S. E., 541; Johnston v. R. R., 163 N. C., 431, 79 S. E., 690.

On this principle we are of opinion, and so hold, that when a proceeding for compensation under the provisions of the North Carolina Workmen’s Compensation Act has been duly docketed in the Superior Court, upon an appeal from an award of the Industrial Commission, the Superior Court has the power in a proper ease to order a rehearing of the proceeding by the Industrial Commission on the ground of newly discovered evidence, and to that end to remand the proceeding to the Commission.

Whether 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.

We find no error in the order in the instant case. It is

Affirmed.