1 N.C. App. 380 | N.C. Ct. App. | 1968
The principal question for decision is whether, under the facts presented, Judge Crissman had authority to grant plaintiff’s motion for a rehearing by the Industrial Commission on the grounds of newly discovered evidence. We hold that he had such authority.
In McCulloh v. Catawba College, 266 N.C. 513, 146 S.E. 2d 467, Sharp, J., speaking for the Supreme Court, said:
After an appeal from an award of the Industrial Commission has been duly docketed in the Superior Court, the judge “has the power in a proper case 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.” Byrd v. Lumber Co., 207 N.C. 253, 255, 176 S.E. 572, 573. (Italics ours.) Accord, Moore v. Stone Co., 251 N.C. 69 ,110 S.E. 2d 459. The burden is upon the applicant for such a rehearing to rebut the presumption that the award is correct and that there has been a lack of due diligence. He makes out “a proper case” for the granting of a new hearing upon the ground of newly discovered evidence only when it appears by affidavit:
“(1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant; (4) that due diligence has been used and the means employed, or that there has been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such*383 a nature as to show that on another trial a different result will probably be reached and that the right will prevail.” Johnson v. R. R., 163 N.C. 431, 453, 79 S.E. 690, 699.
In his order, Judge Crissman, in effect, found facts sufficient to bring plaintiff within the requirements set out in McCulloh, supra. The record is sufficient to support his findings and conclusions.
It is a fundamental rule that the Workmen’s Compensation Act should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation. Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E. 2d 857, citing Johnson v. Hosiery Co., 199 N.C. 38, 40, 153 S.E. 591, 593.
The record discloses that the plaintiff-employee, prior to the hearing before the Deputy Commissioner, consulted Mr. Davis, president of his employer, as to the advisability of employing counsel. Having been advised by Mr. Davis that he did not need a lawyer, plaintiff, evidently an uneducated person, went into the hearing without the benefit of legal counsel. Defendants were represented by able counsel, and although plaintiff advised the Deputy Commissioner of the presence of the two eyewitnesses to the occurrence, the record indicates that the Deputy Commissioner did not advise the plaintiff that he could call said witnesses to the witness stand, nor did the Deputy Commissioner see fit to have the witnesses testify.
We recognize that the Industrial Commission is the sole trier of the facts, but the ends of justice in the instant case require, and we so hold, that' the opinions and awards of Deputy Commissioner Thomas and the Full Commission, entered in this cause, be vacated to the end that a new hearing be held by the Industrial Commission as set forth in Judge Crissman’s order.
We observe that Judge Crissman’s order requires that the opinions and awards of Deputy Commissioner Thomas and. of the Full Commission 'relating only to the question of accidental injury be vacated; this would not accomplish the purpose intended by the order. Therefore, the order is modified by eliminating the words “relating only to the question of accidental injury” in paragraph (A) and the words “only as to the question of accidental injury” in paragraph (B).
Subject to the modifications aforesaid, the order appealed from is affirmed.
Modified and affirmed.
