McCune v. Rhodes-Rhyne Manufacturing Co.

Winborne, J. Upon the record on this appeal appellant, having the burden to do so, has failed to show error in the judgment below. The jurisdiction of a court over the subject matter of an action depends upon the authority granted to it by the Constitution and laws of the sovereignty, and is fundamental. McIntosh P. & P., 7; Stafford v. Gallops, 123 N. C., 19, 31 S. E., 265. There can be no waiver of jurisdiction over the subject matter, and objection may be made at any time during the progress of the action. C. S., 518; Miller v. Roberts, 212 N. C., 126, 193 S. E., 286; Henderson County v. Smyth, 216 N. C., 421, 5 S. E. (2d), 136; Burroughs v. McNeill, 22 N. C., 297, and numerous other decisions in this State. It is stated in Burroughs v. McNeill, supra, that: “The instant that the court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity.” In the present case it is noted that though the demurrer ore ienus to the jurisdiction of tie Superior Court was made by defendant Rhodes-Rhyne Manufacturing Company on the trial below immediately after the jury was impaneled and the pleadings were read, the court deferred ruling thereon until “the close of all the evidence in the cause.” In view of this fact, which is recited in the judgment, it is patent that the court acted upon the demurrer in the light of the factual situation as revealed by the evidence. However, while the court adjudged that any right which plaintiff may have against the corporate defendant is governed by the Workmen’s Compensation Act, the record does not show findings of fact upon which the judgment is based, nor does it appear that plaintiff requested the court to find the facts. In the absence of such findings and of request therefor, it is presumed that the court, upon proper evidence, found facts sufficient to support the judgment. Lumber Co. v. Buhmann, 160 N. C., 385, 75 S. E., 1008; McLeod v. Gooch, 162 N. C., 122, 78 S. E., 4; Gardiner v. May, 172 N. C., 192, 89 S. E., 955; Mfg. Co. v. Lumber Co., 177 N. C., 404, 99 S. E., 104; Holcomb v. Holcomb, 192 N. C., 504, 135 *355 S. E., 381; Rutledge v. Fitzgerald, 197 N. C., 163, 147 S. E., 816; Comr. of Revenue v. Realty Co., 204 N. C., 123, 167 S. E., 563; S. v. Harris, 204 N. C., 422, 168 S. E., 498; Powell v. Bladen County, 206 N. C., 46, 173 S. E., 50; Dunn v. Wilson, 210 N. C., 493, 187 S. E., 802; Banking Co. v. Bank, 211 N. C., 328, 190 S. E., 472. Plaintiff, however, contends that the Workmen’s Compensation Act is unconstitutional for that it destroys the right of trial by jury. This challenge has been fully considered and denied in previous decisions of this Court. Heavner v. Lincolnton, 202 N. C., 400, 162 S. E., 909; appeal dismissed, 53 S. Ct., 4, 287 U. S., 672, 77 L. D., 579; Hanks v. Utilities Co., 204 N. C., 155, 167 S. E., 560; Lee v. Enka Corp., 212 N. C., 455, 193 S. E., 809. Plaintiff further contends that the Workmen’s Compensation Act having no provision for the award of punitive damages, plaintiff has not waived a right to trial by jury for the ascertainment thereof as against both defendants. For the purpose of considering this question, it is assumed from the judgment that the court below found as a fact that at the time of and with respect to the alleged injury to plaintiff, the relationship of employer and employee existed between defendant, Rhodes-Rhyne Manufacturing Company, and the plaintiff. Therefore, under the provisions of the North Carolina Workmen’s Compensation Act, both the company and plaintiff, neither being in the excepted class as therein stated, are presumed to have accepted the provisions of the act and are bound thereby. Pilley v. Cotton Mills, 201 N. C., 426, 160 S. E., 479; Hanks v. Utilities Co., supra; Miller v. Roberts, supra; Lee v. Enka Corp., supra; Murphy v. Enka Corp., 213 N. C., 218, 195 S. E., 536; Tscheiller v. Weaving Co., 214 N. C., 449, 199 S. E., 623. The act expressly provides that the rights and remedies granted to an employee who has accepted the provisions of the act to accept compensation on account of personal injury or death by accident, “shall exclude all other rights and remedies of such employee ... as against his employer at common law, or otherwise, on account of such injury, loss of service, or death.” Public Laws 1929, ch. 120, sec. 11, as amended by ch. 449, Public Laws 1933. Michie’s Code of 1935, 8081 (r). This provision has been upheld by decisions of this Court. Pilley v. Cotton Mills, supra; Lee v. Enka Corp., supra; Murphy v. Enka Corp., supra; Tscheiller v. Weaving Co., supra. Plaintiff further contends that the action being for an alleged joint tort, there is error in allowing the demurrer to jurisdiction as to corporate defendant and retaining the cause as to the individual defendant. This contention is answered in Tscheiller v. Weaving Co., supra, where the Court held that the Industrial Commission has exclusive jurisdiction of plaintiff’s claim only against the employer, but that his right *356 against the individual defendant remains at common law in the Superior Court. Other contentions of plaintiff are deemed untenable. The judgment below is Affirmed.