Neal v. Clary

130 S.E.2d 39 (1963) 259 N.C. 163

Mary W. NEAL
v.
Lawrence Rochelle CLARY, Sr.

No. 172.

Supreme Court of North Carolina.

March 27, 1963.

Henry M. Whitesides, Gastonia, for plaintiff-appellant.

Carpenter, Webb & Golding, John A. Mraz, Charlotte, for defendant-appellee.

DENNY, Chief Justice.

The only assignment of error is to the ruling of the court below in dismissing the action for want of jurisdiction.

Ordinarily, when the pleadings in a common law tort action disclose that the parties are subject to and bound by the provisions of the North Carolina Workmen's Compensation Act with respect to the injury involved, dismissal is proper for the Industrial Commission has exclusive jurisdiction in such cases.

In the instant case, at the time of the hearing below, not only the pleadings tended to show that the employer-employee relationship existed with respect to plaintiff's injury, but the evidence tended to show that all parties, including the defendant, were subject to and bound by the North Carolina Workmen's Compensation Act and that plaintiff employee's injury arose out of and in the course of her employment with the Harden Manufacturing Company.

In light of the pleadings and the evidence adduced in the trial below, we think his Honor properly dismissed this action for want of jurisdiction. Cox v. Pitt County Transportation Co., 259 N.C. 38, 129 S.E.2d 589; Powers v. Robeson County Memorial Hospital, 242 N.C. 290, 87 S.E. 2d 510; Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623.

When this appeal was argued in this Court, the plaintiff, through her counsel, moved to amend her pleadings to allege "That it is admitted that a form signed by the plaintiff was filed with the North Carolina Industrial Commission, said form purporting to be for benefits under the Workmen's Compensation Act; however, plaintiff expressly denies that the paper writing was signed for such purpose and further alleges that her signature on said paper writing was obtained by mutual mistake, misrepresentation, and fraudulent statements on the part of the person obtaining said signature; further that a contested hearing was held before Gene C. Smith, Deputy Commissioner of the North Carolina Industrial Commission, on October 31, 1962, in Gastonia, North Carolina, wherein both plaintiff and employer were represented by attorneys and presented evidence, that by the opinion and award of Gene C. Smith, Deputy Commissioner of the North Carolina Industrial Commission, filed November 27, 1962, in said matter, from which no appeal has been taken, the Commission's approval of Industrial Commission Form No. 21 Agreement dated February 13, 1961, between the plaintiff, the defendant employer (Harden Manufacturing Company) and Lumbermens Mutual Casualty Company, approved by the Commission on March 7, 1961, was set aside; said opinion reciting in the conclusion of law of the Commissioner, that the accident did not arise out of and in the course of the plaintiff's employment, nor did the employer-employee relationship exist at the time of the accident, and therefore, the Industrial Commission has no jurisdiction over the claim."

A certified copy of the opinion and award of the Deputy Commissioner, filed 27 November 1962, was attached to plaintiff's motion to amend her pleadings, and the award reads as follows: "The motion of the plaintiff that the award of the North Carolina Industrial Commission, evidenced by the Commission's approval of Industrial Commission Form 21 agreement, dated February 13, 1961, between the plaintiff, the defendant employer and Lumbermens Mutual Casualty Company, approved by the Commission on March 7, 1961, is hereby granted, and said award is hereby set aside."

We do not construe the award filed by the Deputy Commissioner on 27 November 1962, to set aside the agreement of the parties contained in Form No. 21, filed with the Industrial Commission on 13 February 1961 and approved by the Commission on 7 March 1961, on the grounds of mutual mistake, fraud or otherwise, or to expressly withdraw the approval of the Commission thereto, but merely purports to set aside the award theretofore entered. "An agreement for the payment of compensation when approved by the Commission is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal, G.S. 97-87." Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109; Smith v. Mecklenburg County Chapter American Red Cross, 245 N.C. 116, 95 S.E. 2d 559.

The motion to amend filed in this Court is denied without prejudice to move before the Industrial Commission, after notice to all interested parties, to set aside the agreement contained in Form No. 21, dated 13 February 1961, as well as the award made pursuant thereto, on the grounds of mutual mistake, misrepresentation and fraudulent statements. Nance v. City of Winston-Salem, 229 N.C. 732, 51 S.E.2d 185. If such agreement is set aside by the Industrial Commission on the aforesaid grounds, the plaintiff may, if so advised, institute a new action and allege the facts with respect to jurisdiction as they may then exist.

It will be noted that no ruling adverse to the plaintiff was made in the court below on the merits of plaintiff's cause of action, but only as to jurisdiction.

Affirmed.