Farr v. Babcock Lumber Co. ( 1921 )

WALKER, J., concurs only in dismissal of appeal. The plaintiff is a resident of Graham County, and the defendant is a foreign corporation, engaged in the manufacture of lumber, with plants in Tennessee. The defendant owned timber lands in Graham County and operated a railroad for hauling logs from Graham to its plants. The defendant had camps, a hospital, and an office in Graham County. The plaintiff, an employee of the defendant, was injured while in the prosecution of the work assigned him. The complaint states four causes of action: (1) Defendant's failure to provide for plaintiff a safe place in which to work; (2) defendant's failure to keep a physician at the camp to attend plaintiff after he was injured; (3) defendant's employment of an incompetent physician; (4) defendant's negligent failure to provide plaintiff transportation to his home from the junction on the road of defendant and Knoxville Power Company. Plaintiff alleged that defendant had undertaken to provide for the plaintiff and other employees a competent physician and surgeon when needed, and made a monthly charge or assessment, which was deducted from the employees' wages.

The defendant denied the plaintiff's material allegations and alleged that the contract of employment was made in Tennessee and subject to the provisions of the Workmen's Compensation Act, passed by the General Assembly of Tennessee on 15 April, 1919, and made effective from 1 July, 1919.

The defendant contended that upon the face of the pleadings — it having been agreed that the contract of employment had been made in Tennessee — the court had no jurisdiction. The court sustained the motion as to the first cause of action, and overruled it as to the second, third, and fourth. Upon the intimation of the court, the plaintiff submitted to a nonsuit as to the first cause, and did not appeal. The court further adjudged that the trial should proceed upon the second, third, and fourth causes. The defendant excepted and appealed. His Honor held that the court had no jurisdiction (727) of the first cause of action, and retained the second, third, and fourth causes for trial by jury. The defendant thereupon excepted and appealed. The order appealed from was not final, or of such character as to deprive the defendant of any substantial right, and for this reason the appeal was premature. The defendant can preserve its exception until a final judgment is rendered. In numerous cases this Court has held that a premature or fragmentary appeal will not be considered.Hailey v. Gray, 93 N.C. 196; Lane v. Richardson, 101 N.C. 182; Mfg. Co.v. Buxton, 105 N.C. 74; Emry v. Parker, 111 N.C. 261; R. R. v. King,125 N.C. 454.

We are requested, however, to review so much of the judgment as retains for trial the second, third, and fourth causes of action. As now advised, especially in the absence of an opposing interpretation by the Supreme Court of Tennessee, we are of opinion that the sections of the Workmen's Compensation Act cited and relied on by the defendant do not purport to interfere with the jurisdiction of the Superior Court in Graham as to the second, third, and fourth causes of action stated in the complaint, and that there was no error in his Honor's order that these causes be retained for trial.

Appeal dismissed.

WALKER, J., concurs only in dismissal of appeal.

Cited: Goldsboro v. Holmes, 183 N.C. 204; Teal v. Liles, 183 N.C. 679;Johnson v. R. R., 191 N.C. 83; Meekins v. Game Preserves, 212 N.C. 96;Johnson v. Ins. Co., 215 N.C. 122; Reaves v. Mill Co., 216 N.C. 466;Belk's Dept. Store v. Guilford County, 222 N.C. 450; Utilities Com. v. R.R., 223 N.C. 841; Johnson v. Catlett, 245 N.C. 348.