McMurry v. Mohican Mills, Inc.

Court of Appeals of North Carolina

McMurry v. Mohican Mills, Inc.

180 S.E.2d 459, 11 N.C. App. 186, 1971 N.C. App. LEXIS 1480

CourtCourt of Appeals of North Carolina

DecidedApril 28, 1971

DocketNo. 7127IC98

StatusPublished

This text of 180 S.E.2d 459 (McMurry v. Mohican Mills, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McMurry v. Mohican Mills, Inc., 180 S.E.2d 459, 11 N.C. App. 186, 1971 N.C. App. LEXIS 1480 (N.C. Ct. App. 1971).

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Opinion

BRITT, Judge.

It is well settled that on appeal to the courts the findings of fact of the Industrial Commission are binding on the courts if competent evidence supports such findings. Penland v. Coal Co., 246 N.C. 26, 97 S.E. 2d 432 (1957) ; Blalock v. Durham, 244 N.C. 208, 92 S.E. 2d 758 (1956); and, Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77 (1936).

G.S. 97-39, one of the applicable statutes, states in pertinent part that:

A widow, a widower and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee. In all other cases questions of dependency, in whole or in part shall be determined in accordance with the facts as the facts may be at the time of the accident, but no allowance shall be made for any payment made in lieu of board and lodging or services, and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident. * * * (Emphasis added.)

There was sufficient competent evidence for the commission to find that any payments made to Mrs. McMurry were “made in lieu of board and lodging,” which payments are not to be considered in determining whether Mrs. McMurry was dependent upon the insured. There was sufficient competent evidence for the commission to find that the amounts given to Mrs. McMurry were for the benefit of the deceased rather than her. Therefore, it was proper for the commission to find that no one was wholly or partially dependent upon the deceased, and to conclude that the compensation should be equally divided between Mr. and Mrs. McMurry. G.S. 97-40.

The order and award appealed from is

Affirmed.

Judges Campbell and Graham concur.

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BRITT, Judge.

It is well settled that on appeal to the courts the findings of fact of the Industrial Commission are binding on the courts if competent evidence supports such findings. Penland v. Coal Co., 246 N.C. 26, 97 S.E. 2d 432 (1957) ; Blalock v. Durham, 244 N.C. 208, 92 S.E. 2d 758 (1956); and, Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77 (1936).

G.S. 97-39, one of the applicable statutes, states in pertinent part that:

A widow, a widower and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee. In all other cases questions of dependency, in whole or in part shall be determined in accordance with the facts as the facts may be at the time of the accident, but no allowance shall be made for any payment made in lieu of board and lodging or services, and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident. * * * (Emphasis added.)

There was sufficient competent evidence for the commission to find that any payments made to Mrs. McMurry were “made in lieu of board and lodging,” which payments are not to be considered in determining whether Mrs. McMurry was dependent upon the insured. There was sufficient competent evidence for the commission to find that the amounts given to Mrs. McMurry were for the benefit of the deceased rather than her. Therefore, it was proper for the commission to find that no one was wholly or partially dependent upon the deceased, and to conclude that the compensation should be equally divided between Mr. and Mrs. McMurry. G.S. 97-40.

The order and award appealed from is

Affirmed.

Judges Campbell and Graham concur.

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Bluebook (online)

180 S.E.2d 459, 11 N.C. App. 186, 1971 N.C. App. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmurry-v-mohican-mills-inc-ncctapp-1971.

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