State ex rel. Employment Security Commission v. Kermon

• Decision Date: 07 July 1950
• Docket Number: No. 593,593
• Citation: 60 S.E.2d 580,232 N.C. 342
• Parties: STATE et rel. EMPLOYMENT SECURITY COMMISSION v. KERMON et al.
• Court: North Carolina Supreme Court

Page 580

60 S.E.2d 580

232 N.C. 342

STATE et rel. EMPLOYMENT SECURITY COMMISSION v. KERMON et al.

No. 593.

Supreme Court of North Carolina.

July 7, 1950.

W. D. Holoman, R. B. Overton and D. G. Ball, all of Raleigh, for plaintiff-appellant.

R. M. Kermon, Wilmington, for defendant-appellee.

DENNY, Justice.

The plaintiff is seeking to collect certain contributions from the defendant company which it contends are due under the so-called contractor's clause, formerly known as G. S. § 96-8(f)(8), now repealed and which read as follows: "Employer' means (8) Any employing unit, which contracts with or has under it any contractor or subcontractor for any employment which is part of its usual trade, occupation, profession, or business, and each such contractor or subcontractor irrespective of the place of performance of contract; provided, the employing unit would be an employer by reason of any other paragraph of this subsection if it were deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such employment. * * *' Laws 1945, c. 531, § 2.

If the removal or dismantling of plumbing fixtures constituted a part of the 'usual trade, occupation, profession or business' of the general contractors (or any one of them) who were engaged in the demolition or dismantling of buildings at Camp Davis, then the defendant is liable for the contributions claimed by the plaintiff, otherwise not.

This appeal turns on whether or not there is any competent evidence to support the finding of fact to the effect that the work done by the defendant company did constitute a part of the 'usual trade, occupation, profession or business' of the employing units.

The Employment Security Commission under the provisions of our Employment Security Law, G.S. § 96-4(m), has the power and duty 'to determine any and all questions and issues of fact or questions of law that may arise under the employment security law * * *. When an exception is made to the facts as found by the commission, the appeal shall be to the superior court in term time but the decision or determination of the commission upon such review in the superior court shall be conclusive and binding as to all questions of fact supported by any competent evidence.' Unemployment Compensation Comm. v. Willis, 219 N.C. 709, 15 S.E.2d 4; Employment Security Comm. v. Roberts, 230 N.C. 262, 52 S.E.2d 890. Therefore, the trial judge was empowered to review the evidence and determine whether or not the finding of fact, to which the defendant excepted, was supported by any competent evidence, but he was not authorized to disregard any of the findings of fact of the Commission and to substitute his own findings in lieu thereof. G.S. § 96-4(m).

The general rule with respect to judicial review of findings of administrative agencies is discussed in 42 Am.Jur., Section 214, p. 634 et seq., as follows: 'The most commonly accepted standard governing the scope of judicial review rests on a distinction between reviewable questions of law and nonreviewable questions of fact. The analytical basis of this distinction is an attempted differentiation between the functions of an administrative tribunal and those of the court. In general, it is said to be the function of an administrative tribunal to determine the facts of a controversy on issues raised before it and to apply the law to those facts, while it is the function of the reviewing court to decide whether the correct rule of law was applied to the facts found, and whether there was evidence before the administrative tribunal to support the findings made. Consequently, it is said that the legal effect of evidence and the ultimate conclusions drawn by an administrative tribunal from the facts, as distinguished from its findings of primary, evidentiary, or circumstantial facts, are questions of law, particularly where the facts are not disputed and permit no dispute as to inferences to be drawn, the question depending wholly upon the application of established legal principles to such facts.'

In Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515, 518, this Court, speaking through Barnhill, Jr., said: 'The commission having found the facts in respect to the terms and conditions upon which McLean undertook the work of dismantling and salvaging the machinery purchased by defendant from Superior Yarn Mills, it settled the question of fact involved in the 'finding' or conclusion as to the nature and extent of the contract. Hence, the element of fact involved in the conclusion is settled. Both the court below and this Court are bound thereby. The only question presented is the legal status of McLean under the contract. The Commission's conclusion in this respect is reviewable. Thomas v. Raleigh Gas Co., 218 N.C. 429, 11 S.E.2d 297.'

It would seem the determination of the Employment Security Commission that the appellee was engaged in work which constituted a part of the usual trade, occupation, profession or business of the general contractor was a mixed question of law and fact. Even so, in such instances, if there be any competent evidence to support the conclusion reached by the Commission, neither the Superior Court nor this Court may interfere therewith. Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342.

In the case of Unemployment Compensation Comm. v. Harvey & Son Co., 227 N.C. 291, 42 S.E.2d 86, 90, this Court, in passing upon the same question presented on this appeal, said: 'The circumstances summarized, supra, from the evidence as incidents of the contract and their mutual dealings, are not directed to showing these relations and making available their common-law implications, but to the issue whether the contract was of the nature described in the statute. The judicial determination of that question must depend upon inferences fairly drawn from the evidence by those whose office it is to find the facts. We cannot say that the findings of the Commission are unsupported by evidence, or that they are inadequate to sustain the conclusions drawn from them.'

Likewise, in the case of Employment Security Comm. v. Champion Distributing Co., 230 N.C. 464, 53 S.E.2d 674, 678, in considering whether or not there was any competent evidence to support certain findings of fact, the Court said, 'Here we may be reminded that on review we are, by the statute, bound by the findings of fact when there is any competent evidence or reasonable inference from such evidence to support them, G.S. § 96-4(m).'

In the instant case, there is evidence to the effect that the defendant company at various times in 1946 entered into contracts with general contractors,...