Kilby v. Dowdle

166 S.E.2d 875 (1969) 4 N.C. App. 450

Frank KILBY
v.
Jesse Wilton DOWDLE and Carolina Truck & Body Company, Inc.

No. 6928SC38.

Court of Appeals of North Carolina.

April 30, 1969. Certiorari Denied June 23, 1969.

Gudger & Erwin, by Samuel J. Crow, Asheville, for plaintiff-appellee.

Uzzell & DuMont, by Harry DuMont, Asheville, for defendant-appellant.

BRITT, Justice.

An appeal lies immediately from refusal to dismiss a cause for want of jurisdiction. 1 Strong, N.C. Index 2d, Appeal and Error, § 6, p. 118.

Carolina contends that the superior court did not have jurisdiction to pass upon the plea in bar; that the Industrial Commission had exclusive jurisdiction to determine if plaintiff at the time of the injury came under the provisions of the Workmen's Compensation Act. We think this case is governed by the decision in Burgess v. Gibbs, 262 N.C. 462, 137 S.E. 2d 806. In that case, the superior court had concluded, in a situation bearing some similarity to the one at hand, that the plaintiff was an employee subject to the Workmen's Compensation Act and had dismissed the action. Parker, J. (now C. J.), noted that "[w]hen the trial judge in the absence of the jury heard and decided all questions relating to the court's jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent judicial power to inquire into, hear and determine the questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction. (Numerous citations.)" We hold that the superior court did have jurisdiction to pass upon the plea in bar.

Carolina's assignments of error to the court's findings of fact are overruled. Although the evidence was in conflict on several crucial points, among which were whether plaintiff was to receive compensation for the trip and whether plaintiff was to render services to Carolina on the trip, competent evidence sufficient to support the findings of fact was introduced. Consequently, the findings of fact are binding and conclusive upon us, notwithstanding there was evidence contra. Burgess v. Gibbs, supra.

Carolina's assignments of error to the court's conclusions of law are overruled. The conclusions of law made by the court, based on the facts found, were correct and comply fully with the rationale set out in Humphrey v. Quality Cleaners and Laundry, 251 N.C. 47, 110 S.E.2d 467. Here, the trip by the plaintiff bore no relation to the business being performed by Carolina. There was no question but that plaintiff would not have made the trip, except for his personal business. The work of Carolina in no way created a necessity for this trip by the plaintiff.

The plea in bar was properly overruled, and the judgment of the superior court is

Affirmed.

MALLARD, C. J., and FRANK M. PARKER, J., concur.