Askew v. Leonard Tire Co., 191

• Decision Date: 07 April 1965
• Docket Number: No. 191,191
• Citation: 264 N.C. 168,141 S.E.2d 280
• Court: North Carolina Supreme Court
• Parties: James ASKEW, Employee, v. LEONARD TIRE COMPANY, Employer, and Travelers Insurance Company, Carrier.

Page 280

141 S.E.2d 280

264 N.C. 168

James ASKEW, Employee, v. LEONARD TIRE COMPANY, Employer and Travelers Insurance Company, Carrier.

No. 191.

Supreme Court of North Carolina.

April 7, 1965.

Jones, Jones & Jones, Ahoskie, and Pritchett & Cooke, Windsor, for plaintiff.

Allsbrook, Benton & Knott and Dwight L. Cranford, Roanoke Rapids, for defendants.

MOORE, Justice.

To be entitled to maintain a proceeding for compensation for personal injury under the provisions of the Workmen's Compensation Act the claimant must be, in fact and in law, an employee of the alleged employer. The question whether the employer-employee relationship exists is clearly jurisdictional. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645; Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301; Francis v. Carolina Wood Turning Co., 204 N.C. 701, 169 S.E. 654. A challenge to jurisdiction may be made at any time, even in Supreme Court. Richards v. Nationwide Homes, supra; Dependents of Thompson v. Johnson Funeral Home, 205 N.C. 801, 172 S.E. 500. We have said repeatedly that when a party challenges the jurisdiction of the Industrial Commission the findings of fact made by the Commission, on which its jurisdiction is dependent, are not conclusive on the superior court, and the superior court has the power, and it is its duty, on appeal, to consider all the evidence in the record and to make therefrom independent findings of jurisdictional facts. Richards v. Nationwide Homes, supra; Pearson v. Peerless Flooring Co., supra. See 3 Strong: N.C. Index, Master & Servant, s. 93, pp. 290-1, and cases cited.

If the superior court, in the instant case, made independent findings of fact from the evidence in the record, on the jurisdictional question, it failed to set out such findings in the judgment. The judgment holds that the material findings of the Commission as to the employer-employee relationship are supported by competent evidence; it overrules appellants' exceptions and assignments of error.

Appellants contend that plaintiff was not an employee of defendant Tire Company, but was an independent contractor. They contend that the court erred in failing to consider the evidence in the record and make therefrom independent findings of jurisdictional facts. It is apparent from an examination of the judgment that the judge did review and consider all of the evidence in the record. The narrow question presented is whether it is mandatory that the superior court, on an appeal from the Commission, after considering all the evidence in the record, make independent findings of fact on jurisdictional questions and set out such findings in the judgment, though the court is in agreement with and affirms the Commission's findings of jurisdictional facts.

As pointed out in Pearson v. Peerless Flooring Co., supra, there is apparent conflict in some of the decided cases as to whether the superior court must make independent findings of jurisdictional facts. In some of the cases the question as to employer-employee relationship was not expressly presented as jurisdictional, and the Court, perhaps unmindful of the jurisdictional nature of the question, applied the rule that the Commission's findings of fact are conclusive on appeal when supported by competent evidence--the rule (G.S. § 97-86) as to findings of non-jurisdictional facts. Hawes v. Mutual Benefit Health & Accident Association, 243 N.C. 62, 89 S.E.2d 739; Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515; Cloninger v. Ambrosia Cake Bakery Co., 218 N.C. 26, 9 S.E.2d 615; Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276. In most of the cases in which the superior court has reversed the opinion and award of the Commission on jurisdictional questions, the judge has made independent findings of jurisdictional facts, and the Supreme Court has approved that procedure. Richards v. Nationwide Homes, supra; Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673; Francis v. Carolina Wood Turning Co., supra; Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569.

In Beach v. McLean, supra, it is stated that the inquiry whether employer-employee relationship exists is a mixed question of fact and law, and the correct determination depends 'upon the answer to two questions; (1) What are the terms of the agreement--that is, what was the contract between the parties; and (2) what relationship between the parties was created by the contract--was it that of master and servant or that of employer and independent contractor? The first involves a question of fact and the second is a question of law.' The opinion states further: '* * * the commission has found the facts which constitute the contract. The facts as thus found are conclusive.'

In Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269, the crucial inquiry was whether the employee was a resident of North Carolina, a jurisdictional question. The Commission concluded, upon facts found, that the employee was a resident of North Carolina at the time of his fatal injury, and awarded compensation to his dependent. On appeal, the superior court overruled defendant's exceptions and assignments of error and affirmed all of the findings of fact and conclusions of law and the award of the Commission. The court recited in the judgment that 'the entire record' had been 'examined and considered.' The Supreme Court declared: '* * * it is not enough that the Judge of Superior Court overrule the exceptions to the findings of fact and conclusions of law, and affirm the findings of fact and conclusions of law made by the Industrial Commission.' The cause was remanded to superior court for rehearing and independent findings of jurisdictional facts by the judge.

In Pearson v. Peerless Flooring Co., supra, the question was whether the employer-employee relationship existed. The superior court entered judgment declaring that the evidence in the record had been reviewed, the Commission's findings of fact are supported by competent evidence, the Commission's conclusions of law are correct, and the award should be affirmed. The judgment overruled defendants' exceptions and assignments of error and adopted the findings of fact and conclusions of law of the Commission 'as fully as if set forth verbatim in this judgment.' On appeal to Supreme Court defendants contended that the judge erred in failing to 'make independent findings of fact relevant to the controverted jurisdictional question.' After reviewing the many cases dealing with the subject this Court said:

'* * * we need not undertake to reconcile or to resolve the apparent conflict in the cited decisions.

'The record, fairly interpreted, does not show that Judge Rousseau failed to consider the evidence and make his own findings of fact therefrom. Indeed, the stronger inference is that he did so. Certainly, if he considered the findings of fact of the Commission correct, and his judgment so states, the rule contended for by appellants would not require a mere rephrasing of essentially the same factual findings in order to demonstrate that the findings made by him were his own rather than an approval of the Commission's findings because supported by some competent evidence.

'The record shows that Judge Rousseau, after a full review of the evidence, found not only that the findings of fact of the Commission were supported by competent evidence but that they were correct. He adopted the findings of fact made by the Commission as his own 'as fully as if set forth verbatim in this judgment.''

We are not disposed to draw fine distinctions in an effort to harmonize our former decisions, and thereby add confusion to uncertainty. Decision in the case at bar could well rest upon the authority of either Beach or Aylor, which are apparently in direct conflict. Beach is neither distinguished nor cited by Aylor, and it does not appear that it was intended that the latter overrule the former. It is not clear that the Court was mindful of the jurisdictional aspect of the question in the Beach case; in Aylor, the Court made a more comprehensive and absolute application of the rule with respect to jurisdictional findings than the cases cited in support justify. Pearson is well reasoned, avoids extremes, and modifies the holding in Aylor. Yet, it does not provide general guide lines; it is authoritative only with respect to the particular circumstances therein presented. Duty now dictates that we no longer leave the subject rule in the twilight of uncertainty; we must declare with as much certainty and specificity as possible the meaning of the rule.

The rule in question was first declared in Aycock v. Cooper, supra. The superior court had made independent findings of jurisdictional facts, contrary to the findings of the Commission. The evidence in the record was conflicting in the sense both the judge's findings and the Commission's findings had support therein. The substance of the rule laid down is that (1) the Commission's findings of fact, upon which its jurisdiction depends, are not conclusive on appeal to superior court, and (2) the superior court 'has both the power and the duty * * * to consider all of the evidence in the record, and find therefrom the jurisdictional facts, without regard to the finding of such facts by the commission.' The Court stated: 'The question has not heretofore been presented to this court, and we therefore have no decision which may be cited as authority * * *.' The rationale of decision is that 'A contrary holding might present a serious question as to the validity of the statutory provision with respect to the effect of the findings of fact made by the commission.' In case after case the rule has been approved by us, and must be considered as settled law. The problem is in its application.

From a consideration of all of the cases interpreting and applying the...