State ex rel. Employment Security Commission v. Simpson

PARKER, J. The defendant’s assignments of errors Nos. 1 to 8, both inclusive, are to the rulings of the Superior Court in sustaining an order of the Full Commission overruling his exceptions to the findings of facts contained in Opinion No. 862 of the Employment Security Commission as follows : part of finding of facts No. 4; all of findings of facts Nos. 5, 6, 7, 8, 11, 12 and most of finding of facts No. 13, which findings of facts were affirmed by the full Commission. A careful reading of the evidence in the record discloses that there is competent evidence to support each and every finding of fact by the Commission, to which the defendant excepts, and assigns as error. Such findings of facts by the Commission are conclusive upon review, and the defendant’s Assignments of Errors, Nos. 1 to 8, both inclusive, are overruled. G.S. 96-4 (m); S. v. Roberts, 230 N.C. 262, 52 S.E. 2d 890; S. v. Distributing Co., ibid., 464, 53 S.E. 2d 674; S. v. Monsees, 234 N.C. 69, 65 S.E. 2d 887. The defendant’s Assignment of Error No. 9 is to the ruling of the Superior Court in sustaining an order of the full Commission overruling his exception No. 9 to the Employment Security Commission’s determination of question of law No. 1 contained in Opinion 862, and affirmed by the full Commission. The ruling of the Superior Court is correct for it is based on the Employment Security Statute. G.S. 96-8 (e) and G.S. 96-8 (f). This assignment of error is untenable. The defendant’s Assignment of Error No. 10 is to the ruling of the Superior Court in sustaining an order of the full Commission overruling his exception No. 10 to the Employment Security Commission’s determination of Question of Law No. 2 contained in Opinion 862, and affirmed by the full Commission. The determination of Question of Law No. 2 is in accord with our decisions, and this assignment of error is overruled. Wilkinson v. Coppersmith, 218 N.C. 173, 10 S.E. 2d 670; Rothrock v. Naylor, 223 N.C. 782, 28 S.E. 2d 572; Johnson v. Gill, 235 N.C. 40, 68 S.E. 2d 788. The defendant’s Assignments of Errors Nos. 11, 12 and 13 are without merit, and are overruled. The defendant in his brief contends that he was an employee of the Biltmore Forest Company; that such company is a municipal corporation and that the term “employment” under the Employment Security Law, G.S. 96-8 (7) (A), does not include him. The Commission’s Finding of Facts No. 3, to which the defendant has not filed an exception and assignment of error, are in part as follows: “W. B. Simpson entered into a purchase agreement whereby the Biltmore Forest Company sold to him [299] certain standing timber at a price of $20.00 per thousand board feet measure”; that in connection with the purchase of the timber the defendant agreed to remove all sawdust, to keep brushes cut down, to pile no brush on the premises of the Biltmore Forest Company. There was competent evidence to support this finding of facts which is binding on us, and according to this finding of facts the defendant was not in the employ of the Biltmore Forest Company. In fact, there is no competent evidence in the record upon which the Commission could have found that the defendant was in the employ of the Biltmore Forest Company in cutting this timber. This contention of the defendant is not tenable. The defendant in his brief cites only one case, S. v. Monsees, supra, which does not support his contentions. The judgment of the Superior Court is Affirmed.