Morse v. Curtis

• Decision Date: 11 March 1970
• Docket Number: No. 7,7
• Citation: 276 N.C. 371,172 S.E.2d 495
• Parties: Patricia MORSE v. Kathryn F. CURTIS, doing business as Camp Illahee. Bleecker MORSE v. Kathryn F. CURTIS, doing business as Camp Illahee.
• Court: North Carolina Supreme Court

Page 495

172 S.E.2d 495

276 N.C. 371

Patricia MORSE v. Kathryn F. CURTIS, doing business as Camp Illahee.

Bleecker MORSE v. Kathryn F. CURTIS, doing business as Camp Illahee.

No. 7.

Supreme Court of North Carolina.

March 11, 1970.

Uzzell & DuMont by Harry DuMont, Asheville, and Francis M. Coiner, Hendersonville, for plaintiffs-appellees.

Landon Roberts, Asheville, Ralph H. Ramsey, Jr., Ramsey, Hill & Smart, Brevard, for defendant-appellant.

BRANCH, Justice.

The question here presented for decision is: Did the Court of Appeals err in affirming the trial judge's action in overruling defendant's pleas in bar and allowing plaintiff's motion to strike defendant's entire First Further Answer and Defense?

Defendant first contends that when plaintiff Patricia Morse filed her claim with the Industrial Commission and the defendant thereafter admitted liability, the North Carolina Industrial Commission was invested with exclusive jurisdiction. In support of this position defendant cites and relies upon G.S. § 97--9 and G.S. § 97--10.1. We quote both sections:

§ 97--9. Employer to secure payment of compensation.--Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified.

§ 97--10.1. Other rights and remedies against employer excluded.--If the employee and the employer Are subject to and have accepted and complied with the provisions of this article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death. (Emphasis added)

The General Court of Justice consists of an appellate division, a Superior Court division, and a District Court division. The Superior Court is a court of general jurisdiction and has jurisdiction in all actions for personal injuries caused by negligence, except where its jurisdiction is divested by statute. Article IV, Section 2, North Carolina Constitution; G.S. § 7A--240, G.S. § 7A--242; Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548. By statute the Superior Court is divested of original jurisdiction of all actions which come within the provisions of the Workmen's Compensation Act. Neal v. Clary, 259 N.C. 163, 130 S.E.2d 39; Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706; Hedgepeth v. Lumbermen's Mutual Casualty Co., 209 N.C. 45, 182 S.E. 704. Conversely,

'The Industrial Commission is not a court of general jurisdiction. It is an administrative board with quasi-judicial functions and has a special or limited jurisdiction created by statute and confined to its terms. Its jurisdiction may not be enlarged or extended by act or consent of parties, nor may jurisdiction be conferred by agreement or waiver, Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673; Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305.' Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215.

In the case of Hanks v. Southern Public Utilities Commission, 210 N.C. 312, 186 S.E. 252, the facts show that Curtis E. Hanks died by reason of injuries received while employed by Southern Public Utilities Company. His employer filed a report of the accident which resulted in Hanks' death with the Commission on its required forms in December 1929. Hanks' administrator filed an action in Superior Court of Wilkes County under provisions of the Federal Employers' Liability Act. This action remained In fieri in Wilkes County Superior Court until 8 January 1935, when a voluntary nonsuit was taken. The first action taken before the North Carolina Industrial Commission by the Administrator of Hanks' estate was a formal petition for award and request for hearing on 23 March 1935--more than five years after the date of death. The Workmen's Compensation Act at that time provided that right to compensation would be barred unless a claim was filed within one year of death. The defendant denied liability and contended that the plaintiff was barred because claim had not been filed within one year after the employee's death and because plaintiff had elected to proceed under the Federal Employers' Liability Act in Wilkes County Superior Court. The North Carolina Industrial Commission denied compensation and upon appeal the Superior Court overruled the Commission. This Court in reversing the action of the Superior Court stated:

'The restriction upon proceeding in another forum is that a recovery in the one form of action bars recovery in the other. As was said in Phifer v. Berry, 202 N.C. 388, 163 S.E. 119, 121: 'He may recover by one of the alternate remedies, but not by both.'

'The procedure upon the consideration and determination of a matter within the jurisdiction of the Industrial Commission, agreeable to the provisions of the act and the rules and regulations promulgated by the Commission, conforms as near as may be to the procedure in courts generally. By analogy, cases should be disposed of by some award, order, or judgment final in its effect, terminating the litigation. Texas Employers' Ins. Ass'n v. Shilling, (Tex.Civ.App.) 259 S.W. 236; Todd v. (Southern) Casualty Co., (Tex.Civ.App.) 18 S.W.2d 695. A final judgment is the conclusion of the law upon the established facts, pronounced by the court. Lawrence v. Beck, 185 N.C. 196, 116 S.E. 424; Swain v. Bonner, 189 N.C. 185, 126 S.E. 506.

'The record before us fails to show any final order or adjudication of any kind prior to the one appealed from.

'A claim for compensation lawfully constituted and pending before the commission may not be dismissed without a hearing and without some proper form of final adjudication.

'No statute of limitations runs against a litigant while his case is pending in court.'

See also Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27.

The filing of plaintiff's claim with the Industrial Commission invoked its jurisdiction. When its jurisdiction is invoked, the Commission's first order of business is to determine if the claim is properly before it and then proceed according to law. Letterlough v. Atkins, supra.

In the instant case there has been no recovery in either forum. The Industrial Commission has made no final order or adjudication of any kind. A fortiori, it has merely continued consideration of plaintiff's claim without taking any action to determine whether the parties are subject to the Workmen's Compensation Act. The only order determining any matter with finality is the one now before us from the Superior Court. Absent an unchallenged determination of jurisdiction coupled with action resulting in recovery by plaintiff, or a challenge to its jurisdiction resulting in a final appellate holding establishing the Commission's jurisdiction, plaintiff was not precluded from filing her action in Superior Court because she had previously filed claim with the Industrial Commission and defendant had thereafter admitted liability under the Workmen's Compensation Act.

Consequently, Judge McLean, sitting without a jury, by consent of the parties, following the proper Procedure in determining the pleas in bar by hearing evidence offered by the parties, finding facts, reaching conclusions of law, and thereupon entering judgment. His determination of these particular pleas in bar necessarily exercised the inherent judicial power of the court to determine its jurisdiction. Manifestly, this determination of jurisdiction is subject to appellate review. Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806; Jones v. Standard Oil Co., 202 N.C. 328, 162 S.E. 741. By the judgment entered the trial judge overruled defendant's pleas in bar.

The findings of fact included the following:

'3. That the plaintiff, Patricia Morse, upon accepting employment pursuant to the written contract dated March 4, 1964, located and chose horses to be used by her as head of the saddle seat riding program at Camp Illahee, Inc., which was owned and operated by the defendant.

'4. That the plaintiff, Patricia Morse, was engaged during the 1964 camp season as head of the saddle seat program, and as such, had the independent use of her skill, knowledge and training in the execution of said program; was engaged as head of the saddle seat program because of her independent skill and occupation as a horseback riding instructor; that she was employed to perform said duties at the fixed price of $400.00 plus living expenses at the camp for the entire camp season; that said plaintiff in the performance of her duties had complete charge and control of said program, determining solely the type of instruction to be given and the times when such instruction was to be given, and was not subject to discharge for adopting one method of performing her duties rather than another; that said plaintiff was free to use such assistants in said program as she deemed proper, and had full control and the right to control such assistants; that said plaintiff in fact had full responsibility and control, including the right to control the saddle seat riding program at the defendant's camp during the 1964 camp season, more particularly, from June 25, 1964, up to and including August 15, 1964, the date of the occurrence giving rise to this action.'

'9. That on the aforesaid occasion and prior thereto on August 15, 1964, the plaintiff, Patricia Morse, was not performing any of the duties for which she had been employed, nor had said plaintiff at any time been instructed not to use the aforesaid shed.'

Based on these findings of fact, Judge McLean, Inter alia, concluded as a matter of law:

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