Caviness v. Administrative Office of the Courts , 56 N.C. App. 542 ( 1982 )

BECTON, Judge.

Plaintiff argues on this appeal that the Commission committed reversible error in adopting and affirming the finding that he was contributorily negligent and denying his claim.

We first recognize that this Court’s review of a decision of the Industrial Commission in a case arising under the Tort Claims Act is ordinarily limited to two questions: whether the Commission’s findings of fact are supported by competent evidence, and whether the facts found in the order support the conclusions of law. Tanner v. Dept. of Correction, 19 N.C. App. 689, 691, 200 S.E. 2d 350, 351 (1973). Findings of fact supported by competent evidence are conclusive on appeal and the appellate court may not find additional facts even in the face of evidence in the record to support them, since under G.S. 143-293 this type of appeal is “for errors of law only.” Brown v. Board of Education, 269 N.C. 667, 670, 153 S.E. 2d 335, 338 (1967).

We have carefully reviewed the findings of fact in the order which were made the subject of exceptions by the plaintiff and have found that all of them have support in the evidence in the record. Therefore, the sole question on this appeal is whether the Commission was correct in its conclusion that plaintiff was con-tributorily negligent based upon the facts found. We hold that it was not.

The Tort Claims Act authorizes recovery only if the claimant is free from contributory negligence. Crawford v. Board of Education, 275 N.C. 354, 362-63, 168 S.E. 2d 33, 39 (1969). The same rules regarding negligence and contributory negligence which pertain in litigation between private individuals apply in actions under the Tort Claims Act. Barney v. Highway Comm., 282 N.C. 278, 284, 192 S.E. 2d 273, 277 (1972). The burden of proving the plaintiff’s contributory negligence is on the State. G.S. 143-299.1.

Whether a person will be deemed contributorily negligent depends on the peculiar facts of each case. Smith v. Fiber Controls Corp., 300 N.C. 669, 677, 268 S.E. 2d 504, 509 (1980). As aptly summed up in Chaffin v. Brame, 233 N.C. 377, 380, 64 S.E. 2d 276, 279 (1951), “This is so because the true and ultimate test is this: What would a reasonably prudent person have done under the circumstances as they presented themselves to the plaintiff?”

In the case at hand plaintiff knew that on 10 July 1975 he had pleaded guilty in superior court to the lesser offense of careless and reckless driving and thereby kept his driving license. Yet, he nevertheless received a letter dated 26 August 1975 which stated that his driving privilege was revoked for one year for driving under the influence of intoxicating liquor or drugs effective 5 September 1975. Between the date of receiving this letter containing information which he knew to be in error and the date of his arrest, plaintiff went to his attorney for advice on this matter. His attorney took his driver’s license and gave him a note explaining that his license was in the hands of his attorney. Plaintiff further testified that his lawyer, Mr. Burton, told him a mistake had been made; that Mr. Burton told plaintiff he “had been notified” and would “straighten it out;” and that Mr. Burton telephoned someone concerning the mistake in plaintiff’s presence.

On 22 October 1975 plaintiff was given a citation by a police officer for driving while his operator’s license was revoked. Plaintiff promptly showed the officer the note from his attorney and told him there was a mistake because his driver’s license was not revoked. A subsequent lawsuit instituted by plaintiff resulted in the correction of the records of the Department of Motor Vehicles along with the rescission of plaintiff’s license revocation.

In all of the above, plaintiff, knowing that a mistake had been made, went to this attorney for legal advice and guidance. We believe that the action of the plaintiff under these circumstances in going back to the attorney he had paid to save his driver’s license and in following the directions of this attorney, whom he trusted to correctly counsel him as to the legal consequences of his conduct, was consistent with that of a reasonable and prudent person. Plaintiff may have realized that he would ultimately be stopped if the mistake was not corrected promptly. Indeed, he may have assumed the risk of being stopped and having to go back to court to “straighten it out.” These factors may relate to his damages; they do not, in our view, establish that plaintiff was contributorily negligent.

In light of our decision, we do not reach the issue of what damages, if any, plaintiff has suffered in this matter but remand this case to the Commission for a further hearing consistent with this opinion.

Reversed and remanded.

Judge HILL concurs. Judge Hedrick dissents.