Young v. Mayland Mica Co, 162.
| Citation | 193 S.E. 285,212 N.C. 243 |
| Decision Date | 13 October 1937 |
| Docket Number | No. 162.,162. |
| Parties | YOUNG. v. MAYLAND MICA CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yancey County; J. H. Clement, Judge.
Action by Lat R. Young, administrator of the estate of Ralph Young, deceased, against the Mayland Mica Company and Ed Vance. Judgment for the plaintiff, and defendants appeal.
No error.
Action to recover damages for alleged wrongful death.
Plaintiff filed complaint alleging actionable negligence and damages. The defendant filed answer and denied the allegations of the complaint, and further set up plea denying the jurisdiction of the superior court to hear and determine the issues involved, for that it alleges the North Carolina Workmen's Compensation Act (Code 1935, § 8081 (h) et seq.), applies, in that the defendant was engaged in business in Newdale, Yancey county, having regularly in service in its said business more than five employees, including the plaintiff's intestate; and that the accident resulting in the death of plaintiff's intestate arose out of and in the course of his employment within the meaning of the Workmen's Compensation Act.
The following issue, among others, was submitted to the jury: "Did the defendant regularly employ in its service less than five employees?" This was answered in the affirmative.
From judgment on verdict rendered, defendant appealed, assigning error.
J. W. Ragland, of Spruce Pine, for appellant.
Charles Hutchins and Anglin & Randolph, all of Burnside, for appellee.
The principal question involved on this appeal is as to jurisdiction. The defendant challenges jurisdiction of the superior court, and contends that the parties are subject to the provisions of the North Carolina Workmen's Compensation Act. On the facts found, this contention is not sustained.
The Workmen's Compensation Act does "not apply * * * to any person, firm or private corporation that has regularly in service less than five employees in the same business within the state, " unless such employees and their employers voluntarily elect to be bound by the act in the manner therein provided. Code 1935, § 8081 (u) (b).
It is not contended in the instant case that the parties have voluntarily elected to be bound. The only question of fact is as to the number of employees regularly in service in the business of the defendant in this state. This is a jurisdictional fact which the superior court has the duty and power to find. Aycock v. Cooper, 202 N.C. 500, ...
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...jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.' Young v. Mayland Mica Co., 212 N.C. 243, 193 S.E. 285, was an action to recover damages for an alleged wrongful death. Defendant averred a plea in bar on the ground that the I......
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