Aycock v. . Cooper

CoNNOR, J. The North Carolina Workmen’s Compensation Act, by its express provisions, does not apply to casual employees, farm laborers, or Federal Government employees in North Carolina; nor does it apply “to any person, firm or private corporation that has regularly in service less than five employees in the same business within this State, unless such employees and their employer voluntarily elect, in the manner hereinafter specified, to be bound by the act.” N. C. Code of 1931, section 8081 (u), (b). Section 14, chapter 120, Public Laws of North Carolina, 1929. In the absence of an election by both employer and employee to be bound by its provisions, the act applies only to employers, who have in their service, in the same business within this State, as many as five employees. In the instant case, there was no evidence tending to show *503 that tbe employer and bis deceased employee bad elected to be bound by tbe provisions of tbe act. Tbe North Carolina Industrial Commission, therefore, bad no jurisdiction of this proceeding for compensation to be paid by tbe employer to tbe dependent of bis deceased employee, under tbe provisions of tbe act, unless tbe employer bad regularly in bis employment, at tbe date of tbe death of bis employee, and in tbe business in which said employee was employed, as many as five employees. Tbe North Carolina Industrial Commission found from tbe evidence at tbe bearing before Commissioner Dorsett, as • a jurisdictional fact, that at said time, tbe employer bad as many as five employees in tbe same business as that in which tbe deceased employee was employed. On this finding, tbe Commission held that it -bad jurisdiction of tbe proceeding, and on tbe facts admitted, awarded compensation to tbe dependent of tbe deceased employee. At tbe bearing of tbe employer’s appeal from tbe award of tbe full Commission, tbe Superior Court of Franklin County, found from tbe evidence that tbe employer did not at any time from tbe date at which tbe North Carolina "Workmen’s Compensation Act became effective to tbe date of tbe accidental injury which resulted in tbe death of tbe employee, have regularly in bis employment at tbe planing mill, at which tbe deceased employee was employed, as many as five employees, but that' be did have in bis employment at tbe planing mill as many as four employees; that tbe employer bad in bis employment during said time at tbe wood or wagon shop owned and operated by him two and at times three employees; that tbe deceased employee was not employed to work and did not work at any time in tbe wood or wagon shop, but worked only at tbe planing mill. Tbe planing mill at which' tbe deceased employee was employed is located in a shed which adjoins tbe building in which the wood or wagon shop owned and operated by George H. Cooper, is located. Tbe planing mill and tbe wood or wagon shop are both owned and operated by George H. Cooper, but are operated as separate and distinct businesses. Tbe planing mill is operated by steam, while tbe wood or wagon shop is operated by electricity. Each business has a separate and distinct patronage. Neither is operated in any respect in connection with tbe other. It is provided in tbe North Carolina Workmen’s Compensation Act that tbe award with respect to compensation under-the provisions of said act, by a member of tbe North Carolina Industrial Commission, if not reviewed in due time by tbe full Commission, or tbe award of tbe full Commission, upon such review, shall be conclusive and binding as to all questions of fact. Either party to a dispute which has become tbe *504 subject-matter of a proceeding- before the North Carolina Industrial Commission, for compensation under the provisions of the North Carolina Workmen’s Compensation Act, may appeal from the award of said Commission in said proceeding, to the Superior Court of the county in which the accident resulting in injury to the employee happened, or in which the employer resides or has his principal office, for errors of law under the same terms and conditions as govern appeals in ordinary civil actions. N. C. Code of 1931, section 8081 (pp) ; section 60, chapter 120, Public Laws of North Carolina 1929. The courts of this State, since the enactment of the North Carolina Workmen’s Compensation Act, have uniformly applied this statutory provision with respect to questions of fact involved in a proceeding of which the North Carolina Industrial Commission had jurisdiction, and have held that in such proceedings, where there was evidence of sufficient probative force to support the findings of fact made by the Commission, notwithstanding there was evidence to the contrary, such findings of fact are conclusive and binding, not only on the parties to the proceeding, but also, where either party has appealed from the award of the Commission to the Superior Court, on said court. In such case, the Superior Court has power to review the award of the Commission only as to errors in matters of law appearing in the proceeding. Cabe v. Parker-Graham-Sexton, Inc., ante, 176, Dependents of Pool, deceased, v. Sigmon, ante, 172, Williams v. Thompson, 200 N. C., 463, Moore v. State, 200 N. C., 300, Southern v. Cotton Mills, 200 N. C., 165, Rice v. Panel Company, 199 N. C., 154. In the instant case, we are of opinion that there was no evidence sufficient to support the findings of fact made by Commissioner Dorsett, and approved by the full Commission, upon which the Commission concluded that it had jurisdiction of this proceeding. To the contrary, all the evidence shows that George H. Cooper, the employer, did not have in his employment in the business in which his deceased employee was employed, at the time of his death, as many as five employees. For this reason, there was no error in the judgment of the Superior Court, dismissing the proceeding. If, however, it be conceded that there was evidence tending to support the findings of fact on which the Commission concluded that it had jurisdiction of the proceeding, and also that there was evidence to the contrary, tending to support the findings of fact by the Superior Court on which the said court held that the Commission did not have jurisdiction of the proceeding, the question presented for decision by this appeal is, whether the findings of fact made by the Commission were conclusive and binding on the Superior Court, and therefore not subject *505 to review on tbe appeal to said court. This question, we tbink, manifestly, must be answered in tbe negative. Tbe question bas not heretofore been presented to tbis Court, and we, therefore, have no decision which may be cited as an authority, but both a proper construction of tbe language of tbe statute, and well-settled principles of law lead us to tbe conclusion that where tbe jurisdiction of tbe North Carolina Industrial Commission to bear and consider a claim for compensation under tbe provisions of tbe North Carolina Workmen’s Compensation Act, is challenged by an employer, on tbe ground that be is not subject to tbe provisions of tbe act, tbe findings of fact made by tbe Commission, on which its jurisdiction is dependent, are not conclusive on tbe Superior Court, and that said court bas both tbe power and tbe duty, on tbe appeal of either party to tbe proceeding, to consider all tbe evidence in tbe record, and find therefrom tbe jurisdictional facts, without regard to tbe finding of such facts by tbe Commission. A contrary bolding might present a serious question as to tbe validity of tbe statutory provision with respect to tbe effect of tbe findings of fact made by tbe Commission. Tbe law is well settled that where tbe North Carolina Industrial Commission bas jurisdiction of a proceeding for compensation under tbe provisions of tbe North Carolina Workmen’s Compensation Act, its findings of fact with respect to whether or not an injured employee is entitled to compensation, and, if so, in what amount, are conclusive and binding not only on tbe parties to tbe proceeding, but also where either party bas appealed from tbe award of tbe Commission to tbe Superior Court, on said court. Where, however, tbe jurisdiction of tbe Commission is challenged by tbe employer on tbe ground that be is not bound by tbe provisions of tbe North Carolina Workmen’s Compensation Act, tbe findings of fact made by tbe Commission on which its jurisdiction is dependent, are not conclusive on tbe Superior Court. On an appeal to said court, tbe findings of fact made by tbe Commission may be approved, modified or set aside, in accordance with tbe findings of tbe court from all tbe evidence, appearing in tbe record. In tbe instant case, on its findings of fact, which are supported by tbe evidence, tbe Superior Court held that tbe Commission bad no jurisdiction of tbe proceeding and therefore ordered and adjudged that tbe proceedings be dismissed. Tbe judgment dismissing tbe proceeding is Affirmed.