Miller v. Roberts

• Decision Date: 13 October 1937
• Docket Number: 251.
• Parties: MILLER v. ROBERTS et ux.
• Court: North Carolina Supreme Court

193 S.E. 286

212 N.C. 126

MILLER v. ROBERTS et ux.

No. 251.

Supreme Court of North Carolina

October 13, 1937

Appeal from Superior Court, Mitchell County; Felix E. Alley, Judge.

Action by Mrs. Polly Miller, administratrix of Clayton Miller deceased, against Tom Roberts and others. From an adverse judgment, plaintiff appeals.

Affirmed.

In action for wrongful death of plaintiff's intestate, where relation of employer and employee existed between intestate and defendant who employed 25 men in sawmill and lumber business and who gave no notice that he would not be bound by the act, parties were presumed to have accepted Compensation Act, and plaintiff, not being excepted, was bound by the presumption. Code 1935, § 8081(i)(a)(k)(l)(m)(r).

Action to recover damages for alleged wrongful death.

Plaintiff alleges actionable negligence and damage.

In their answer the defendants deny these allegations, but do not plead the Workmen's Compensation Act (Code 1935, § 8081(h) et seq.) in bar of the action.

It is not controverted that the intestate, Clayton Miller, died March 22, 1935, as result of injuries received in the wreck of an autotruck; that on July 29, 1935, his widow, the plaintiff Mrs. Polly Miller, was duly appointed by the clerk of the superior court of Mitchell county as administratrix of the estate of said intestate, and that this action was instituted the same day.

Plaintiff testified: "I am widow of Clayton Miller deceased. He died March 22, 1935. On the day he died, my husband was working for Tom Roberts. He was helping on a truck. He was helping Oscar Townsend. * * * He was being paid $1.00 a day and board. Tom Roberts furnished his board, I suppose. He was paid in the store mostly, Tom Roberts' store, located at Forbes. I mean he was paid in goods out of the store mostly."

Plaintiff offered further evidence tending to show that Tom Roberts was engaged in sawmill and lumber operations in Mitchell county in March, 1935; that the defendant Oscar Townsend was employed there as the driver of a truck used for hauling lumber from mill to market; that plaintiff's intestate worked in the woods most of the time, but sometimes he helped on the truck operated by said Townsend; that on March 22 1935, Townsend, pursuant to his employment, with the intestate as helper, took a load of lumber on said truck to Hickory, N. C.; that on the return trip and at about 8 o'clock that night, while traveling west on state highway No. 10 in Burke county, and approaching a series of sharp curves east of Bridgewater, the said truck in which intestate was riding, while being operated by said Townsend at a rapid rate of speed, 50 miles per hour, and on the left-hand side of the road, collided with a car traveling east on its right side of the road, and then continued on leaving the highway and wrecking at the foot of a steep cliff; that it was then raining, and the night was dark and very foggy; and that in the wreck of the truck, plaintiff's intestate received injuries from which he died in a short time.

Plaintiff introduced in evidence a bill of sale from the defendant Tom Roberts to the defendant Elizabeth Roberts, dated May 11 1934, filed for registration the same day, and registered May 16, 1934, in which he sold and delivered, among other things, a stock of goods at Forbes, all manufactured lumber on the Tom Roberts lumber yards in Buncombe, Madison, and Mitchell counties, two sawmills in Buncombe county, and four teams of mules and horses known as the Tom Roberts teams. No evidence was introduced tending to connect the items sold with the operations in March, 1935.

Defendant, on the cross-examination of Chet Burleson, witness for plaintiff, and over plaintiff's objection, elicited testimony that the defendant "Mr. Roberts," in his lumber operations, had on an average regularly employed 25 employees, including defendant Oscar Townsend and the intestate; that the witness worked as fireman of the sawmill boiler, and was around the buildings a good deal; that at no place about the premises did he ever see a notice tacked up in the building, or office, or any place by Tom Roberts that he was not working under the Compensation Act; that the witness was furnished no notice, and did not receive any letter about it, and that if defendant Tom Roberts ever gave or filed a notice with the Industrial Commission he knew nothing about it.

At the close of plaintiff's testimony, defendants entered motion for judgment as of nonsuit. The court below made the following record: "It appearing to the Court from the uncontradicted evidence of the plaintiff's witnesses that at the time of the injury and death of the plaintiff's intestate, Roberts had in his employment an average of some 25 hands, the Court being of the opinion from the foregoing evidence that the defendant was operating under the provisions of the Workmen's Compensation Act, the motion of the defendants for judgment as of nonsuit is allowed."

From adverse judgment plaintiff appealed to the Supreme Court, and assigned error.

Anglin & Randolph, of Burnsville, for appellant.

Charles Hutchins, of Burnsville, and W. C. Berry, of Bakersville, for appellee.

WINBORNE Justice.

Two questions are presented on this appeal: (1) When the defendants in their answer failed to plead the North Carolina Workmen's Compensation Act as a bar to the jurisdiction of the superior court, is evidence competent on trial in the superior court to prove facts which show the parties to be subject to the provisions of the Act? (2) Is the judgment of nonsuit valid? We answer both in the affirmative.

1. Failure to take objection by answer to the jurisdiction of the court does not waive the right to object to the jurisdiction. C.S. § 518. There can be no waiver of jurisdiction, and objection may be made at any time. Johnson v. Finch, 93 N.C. 205, 208. Hunter v. Yarborough, 92 N.C. 68; Tucker v. Baker, 86 N.C. 1; Clements v. Rogers, 91 N.C. 63; Knowles v. R. R., 102 N.C. 59, 9 S.E. 7; Cherry v. R. R., 185 N.C. 90, 116 S.E. 192.

The court will take judicial notice of a public statute of the state, and such statute need not be pleaded. Wikel v. Board, 120 N.C. 451, 27 S.E. 117; Hancock v. R. R., 124 N.C. 222, 32 S.E. 679; Carson v. Bunting, 154 N.C. 530, 70 S.E. 923; Mangum v. A. C. L., 188 N.C. 689, 125 S.E. 549.

A statute which relates to persons and things as a class is a general law. Southern R. Co. v. Cherokee, 177 N.C. 86, 97 S.E. 758.

The purpose of the North Carolina Workmen's Compensation Act, as disclosed by its language, shows it to be a public statute. Hancock v. R. R., supra; Webb v. Port Commission, 205 N.C. 663, 172 S.E. 377.

In the Hancock Case, supra, it is held that it was not incumbent upon the plaintiff to plead the Fellow Servant Act, a public statute, in order to derive the benefit of the provisions of that act on trial in superior court. In the Mangum Case, supra, it was held that the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, a public statute, enacted by Congress, did not have to be pleaded.

The superior court has the duty and power to find a jurisdictional fact. Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, 571; Young v. Maryland Mica Co. (N.C.) 193 S.E. 285.

In Aycock v. Cooper, supra, speaking to the question as to whether findings of fact by the North Carolina Industrial Commission on jurisdiction are conclusive and binding upon the superior court, Mr. Justice Connor writes: "The question has not heretofore been presented to this court, and we therefore have no decision which may be cited as an authority, but both a proper construction of the language of the statute, and well-settled principles of law lead us to the conclusion that, where the jurisdiction of the North Carolina Industrial Commission to hear and consider a claim for compensation under the provisions of the North Carolina Workmen's Compensation Act is challenged by an employer on the ground that he is not subject to the provisions of the act, the findings of fact made by the commission, on which its jurisdiction is dependent, are not conclusive on the superior court, and that said court has both the power and the duty, on the appeal of either party to the proceeding, to consider all the...