Logan v. . Johnson

10 S.E.2d 653, 218 N.C. 200, 1940 N.C. LEXIS 121

• Court: Supreme Court of North Carolina
• Decided: September 25, 1940
• Status: Published

Opinion

WiNBORNE, J.

Upon the record on this appeal we are of opinion and hold that exception by defendant to the judgment below, assigned as error, is well taken.

Findings of fact of tbe Industrial Commission when supported by competent evidence are binding on tbe Superior, and Supreme Courts. Decisions of tbis Court uniformly so bold. But, where it appears that a finding of fact upon wbicb tbe award is based is not supported by competent evidence, tbe finding is not conclusive and must be set aside. Tbis is tbe rule likewise uniformly established by decisions of tbis Court.

Tbe North Carolina Workmen’s Compensation Act, Public Laws 1929, chapter 120, section 31, as amended, provides for compensation to be allowed: “(q) For tbe loss of an eye, sixty per centum of tbe average weekly wages during one hundred weeks.” Then in subsection (t) of said section it is declared: “Total loss of use of a member or loss of vision of an eye shall be considered as equivalent to tbe loss of such member or eye. Tbe compensation for partial loss of or for partial loss of use of a member or for partial loss of vision of an eye shall be such proportion of tbe payments above provided for total loss as such partial loss bears to-total loss. . . .”

Tbe words used in tbe statute must be taken in their natural or ordinary meaning. Borders v. Cline, 212 N. C., 472, 193 S. E., 826.

Tbe word “loss” is defined by Webster as: “State or fact of being lost or destroyed; ruin; destruction; as tbe loss of a vessel at sea.” Tbe word “lose” is there defined as “To bring to destruction; to ruin; to destroy; . . . to suffer tbe loss of; to be deprived of; to part with . . . especially in an accidental or unforeseen manner; as .. .- . to lose an eye.” Hence, tbe phrases “Tbe loss of an eye” and “Total . . . loss of vision of an eye,” as used in tbe Workmen’s Compensation Act, when given tbe natural or ordinary meaning manifestly indicate tbe state or fact of loss of an eye or total destruction of tbe vision of an eye — as distinguished from a partial loss of such vision.

Here there is evidence of loss of a large percentage of vision of tbe right eye of plaintiff wbicb, when determined, is compensable under tbe provision of tbe act. Yet there is no evidence, competent or otherwise, to support tbe finding of tbe Commission “that plaintiff now has 100 per cent loss of vision in tbe right eye.” Tbis finding appears to have been predicated upon misinterpretation of tbe report of Dr. Gold. Reference thereto reveals that plaintiff has “slight peripheral vision, but only slight perception in center of cornea.” Dr. Glenn, too, says that plaintiff “can see a blurred object, daylight and dark.” Therefore, that finding of fact is set aside and the cause is remanded to tbe North Carolina Industrial Commission for further consideration as to tbe extent of partial loss of vision plaintiff has sustained to bis right eye in accordance with tbis opinion.

As tbe case goes back to tbe Industrial Commission it is appropriate to say that even though there may be other testimony to tbe same effect, the unsigned copy of letter of 25 October, 1937, from Dr. Smith to Dr. Glenn, to which defendant excepted, is incompetent, and has no place in the record and evidence in the case.

Other assignments need not now be considered.

Error and remanded.