
164 S.E.2d 535 (1968)
3 N.C. App. 139
Mrs. Esther BYERS, Widow and Administratrix of the Estate of Weaver Byers, Deceased Employee
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION, Employer, Self-Insurer, Standard Concrete Products Company, Third-Party Tort-Feasor.
No. 6823SC241.
Court of Appeals of North Carolina.
December 11, 1968.
Certiorari Allowed January 31, 1969.
*539 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Asst. Atty. Gen. Henry T. Rosser and Trial Attorney Fred P. Parker, III, Raleigh, for defendant appellant.
Hayes & Hayes by Kyle Hayes, North Wilkesboro, for plaintiff appellee.
FRANK M. PARKER, Judge.
In this case the appeal from the order of the Industrial Commission was taken prior to 1 October 1967 and accordingly properly lay to the superior court. Had the appeal been taken on or after 1 October 1967, it would have come directly to the Court of Appeals. G.S. § 97-86, as amended by Chap. 669, 1967 Session Laws. In either case the appellate court, which was the superior court in this case, has jurisdiction to review only for errors of law. Brice v. Robertson House Moving Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439. If the findings of fact of the Industrial Commission in a proceeding over which it has jurisdiction are supported by competent evidence and are determinative of all of the questions at issue in the proceeding, the court on appeal must accept such findings as true and merely determine whether they justify the legal conclusions and the decision made by the Commission. In no event may the superior court or this Court consider the evidence which was introduced in the proceedings before the Industrial *540 Commission for the purpose of making new findings of fact for itself. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747. A fortiori the appellate court may not receive or consider new evidence not introduced in the hearing before the Commission. The scope of review is limited to the record as certified by the Industrial Commission and to the questions of law therein presented. Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432. If the findings of fact made by the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the Commission for proper findings. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706. Even in such cases, however, ordinarily the limited authority of the reviewing court does not permit it to order remand of the case for the taking of additional evidence. Bailey v. North Carolina Dept. of Mental Health, 272 N.C. 680, 159 S.E.2d 28. The appellate court may remand a cause to the Industrial Commission on the ground of newly discovered evidence only when a proper case is made to appear by affidavit meeting the seven requirements set out in Johnson v. Seaboard Air Line R. R., 163 N.C. 431, 453, 79 S.E. 690, 699. McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467. No affidavit and no such showing has been presented in the present case.
In the light of the foregoing well-established principles it is apparent that the judgment of the superior court here appealed from was erroneous. Not only did the judge make new findings of fact on the basis of the record certified by the Industrial Commission for appellate review, but he allowed introduction into the record of entirely new evidence, in the form of a stipulation, as to the existence of three older children of the deceased employee who did not share in the workmen's compensation award but who were heirs at law of the deceased. On the basis of this new evidence, introduced for the first time in the appellate review hearing in the superior court, the judge found as a fact that the dependents of the deceased employee under the Workmen's Compensation Act are not the same in this case as the distributees of the deceased. On this finding the court concluded as a matter of law that the provisions of the North Carolina Wrongful Death Statute, G.S. § 28-173, are controlling over the provisions of the Workmen's Compensation Act, G.S., Chap. 97. It is true that for purposes of the North Carolina Workmen's Compensation Act a "child" is defined to include only persons who at the time of the death of a deceased employee are under eighteen years of age, G.S. § 97-2(12), while our Wrongful Death Statute, G.S. § 28-173, provides that any recovery thereunder shall be distributed under the North Carolina Intestate Succession Act, G.S., Chap. 29, in which no such age limitation appears. The question of a possible conflict in the distributive provisions of the two statutes is an interesting one and has given the courts of other states considerable difficulty when they were confronted with similar problems in considering their own statutes. (For cases holding that the provisions of the Wrongful Death Statutes control to the extent that the employer's subrogation rights under Workmen's Compensation Statutes are limited to the portion of the wrongful death recovery which is distributed under the Wrongful Death Statutes to persons who also receive compensation as dependents under the Workmen's Compensation Statutes, see: Doleman v. Levine, 295 U.S. 221, 55 S.Ct. 741, 79 L.Ed. 1402; Holley v. The Manfred Stansfield, D.C., 186 F.Supp. 805; Joel v. Peter-Dale Garage, 206 Minn. 580, 289 N.W. 524; United States Fidelity & Guaranty Co. v. Higdon, 235 Miss. 385, 109 So.2d 329; Buzynski v. County of Knox, 159 Me. 52, 188 A.2d 270; Prudential Insurance Co. of America v. Laval, 131 N.J. Eq. 23, 23 A.2d 908; In Re Zirpola v. T & E Casselman, Inc., 237 N.Y. 367, 143 N.E. 222. For cases holding that the provisions of the Workmen's Compensation Statutes control, see: In Re Shields' Estate, *541 320 Ill.App. 522, 51 N.E.2d 816; Gall v. Robertson, 10 Wis.2d 594, 103 N.W.2d 903.)
However, in the case before us the question was not presented for decision on the record before the Industrial Commission and was not properly before the superior court when this case came before it for appellate review. Nor is the question at present properly before this Court and accordingly we refrain from expressing any opinion on it, other than to refer to the following language in the opinion by Chief Justice Denny in Cox v. Pitt County Transportation Co., 259 N.C. 38, 43, 129 S.E.2d 589, 592:
"(I)t is mandatory under the provisions of the Workmen's Compensation Act that any recovery against a third party by reason of an injury to or death of an employee subject to the Act, the proceeds received from such settlement with or judgment against the third party, shall be disbursed according to the provisions of the Workmen's Compensation Act." (Emphasis added.)
Since the superior court had no power to make the new factual finding, the resulting conclusion of law and the judgment insofar as it was based thereon was erroneous.
Appellee further contends that the Highway Commission is barred from sharing in the wrongful death recovery by the language in G.S. § 28-173 which provides that the amount recovered in a wrongful death action is not liable to be applied in payment of debts of the decedent. This contention is without merit. The employer's right of reimbursement under G.S. § 97-10.2(f) (1) (c) is not a debt of the decedent. It is a right created by statute, just as is the right to bring action for wrongful death. The two statutes must be construed together, and when so construed we find no conflict in the language in G.S. § 28-173 which prohibits use of the wrongful death recovery to pay a debt of the decedent and the language in G.S. § 97-10.2(f) (1) (c) which directs that a portion of the recovery be applied to the reimbursement of the employer for benefits paid under award of the Industrial Commission.
The judgment of the superior court was also based in part upon a finding that the employer State Highway Commission, by its failure to participate in the trial and appeal of the wrongful death action, had waived its right to participate in the recovery against the third party tort-feasor. While designated a finding of fact, this was actually a mixed finding of fact and conclusion of law. The factual finding was that the employer had not participated in the trial or the appeal; the conclusion of law derived therefrom was that this amounted to a waiver by the employer of any right to participate in the recovery. The Industrial Commission made a factual finding to the effect that plaintiff administratrix had herself brought the wrongful death action and had appealed to the Supreme Court. It made no finding of fact directly bearing on the employer's failure to participate in such trial or appeal. For the reasons stated above it was error for the superior court on appeal to it to make any new factual findings. Had the superior court on appeal considered that a finding on this point was necessary to a proper determination of this case, the proper course would have been to remand the case to the Industrial Commission to make complete findings. However, in our view the Industrial Commission was entirely correct in not making any finding on this point, since such a finding would have been neither relevant nor determinative of any issue in this case. G.S. § 97-10.2(b) grants to the personal representative of a deceased employee the exclusive right to proceed to enforce the liability of a third party tort-feasor by appropriate proceedings if such proceedings are instituted not later than twelve months after the date of death. If summons is issued against the third party during said twelve months period, the personal representative has the right to settle with the third party and to give a valid and *542 complete release of all claims by reason of the death, subject only to the lien rights of the employer to protect his interest in the proceeds and subject to the requirement that any settlement must be made with the written consent of the employer. G.S. § 97-10.2(d) and (h).
In the case before us the wrongful death action was instituted within twelve months after the date of the employee's death. The right to proceed with such action was therefore by express language of the statute vested exclusively in plaintiff administratrix. The employer, State Highway Commission, was neither a necessary nor a proper party thereto. G.S. § 97-10.2(d). This being so, it is difficult to see in what manner the State Highway Commission could have "participated" in the trial or appeal of the wrongful death action. Its failure to do what it had no legal right to do could not result in a forfeiture of the right expressly vested in it by statute to share in the proceeds of the recovery against the third party tort-feasor. G.S. § 97-10.2(f) (1) expressly provides that where the employer has either filed a written admission of liability for benefits under the Workmen's Compensation Act, or an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by settlement with, judgment against, or otherwise from the third party by reason of injury or death of the employee shall be disbursed by order of the Industrial Commission, first to the payment of actual court costs taxed by judgment, second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and third to the reimbursement of the employer for all benefits by way of compensation or medical treatment expense paid or to be paid by the employer under award of the Industrial Commission. Any amount remaining after the foregoing payments is to be paid to the employee or his personal representative.
The Industrial Commission had the exclusive original jurisdiction in this case to determine the proper distribution of the funds recovered from the third party tort-feasor. Cox v. Transportation Co., supra. The order entered by the Industrial Commission in this case followed precisely the directions of the statute, G.S. § 97-10.2(f) (1), and was correct. Accordingly, the judgment of the superior court is reversed and this case is remanded to the Superior Court of Wilkes County for entry of judgment affirming the decision of the Industrial Commission.
Reversed and remanded.
BROCK and BRITT, JJ., concur.
