Burns v. Riddle

144 S.E.2d 847 (1965) 265 N.C. 705

William Paul BURNS, Employee,
v.
George RIDDLE, Employer, Non-Insurer.

No. 617.

Supreme Court of North Carolina.

November 24, 1965.

Pittman, Staton & Betts, Sanford, for plaintiff appellee.

Hoyle & Hoyle, Sanford, for defendant appellant.

PER CURIAM.

As indicated, defendant's assignment of error is directed solely to the finding of fact, "Defendant sawed and logged more than 60 days during the six months preceding June 7, 1963," and to the conclusion of law predicated thereon. Defendant's brief states: "There is no question raised about the injury coming from the job."

In Askew v. Leonard Tire Co., 264 N.C. 168, 174, 141 S.E.2d 280, in which prior (conflicting) decisions are reviewed, it is stated: "The Commission's findings of jurisdictional facts are not conclusive on appeal to superior court, even if supported by competent evidence." Here, the finding of fact "that there is competent evidence in the record to support the findings of fact of Deputy Commissioner Thomas" indicates clearly that the judge was proceeding under a misapprehension of the applicable law, that is, on the premise that the Commission's findings of jurisdictional facts were binding upon him if supported by any competent evidence and that he was without authority to make independent findings. Hence, the judgment of the court below is vacated and the cause is remanded to the superior court for further hearing on defendant's exceptions to the Commission's findings of fact and conclusions of law pertinent to its jurisdiction. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, and cases cited therein, and numerous subsequent decisions in accord therewith.

Upon such further hearing, the court will make its independent findings as to the determinative jurisdictional facts. If it is determined upon such independent findings that the Commission had jurisdiction, the court will affirm the Commission's award in its entirety. If it is determined that the Commission did not have jurisdiction, the court will vacate the Commission's award.

It is noteworthy that, with reference to the disputed jurisdictional fact(s), the evidence is conflicting.

Error and remanded.