Aylor v. Barnes

87 S.E.2d 269 (1955)

242 N.C. 223

Nora Hucherson AYLOR, Mother; Odell Aylor, Deceased Employee, v. L. R. BARNES, Trading as Barnes-Taylor Company; N. C. Pine Lumber Company, Employer; Indemnity Insurance Company of North America, Carrier.

No. 308.

Supreme Court of North Carolina.

May 4, 1955.

*271 Barden, Stith & McCotter, New Bern, for defendants-appellants.

Raymond E. Sumrell, Lee & Hancock, New Bern, Nottingham & Somerville, Orange, Va., for plaintiff-appellee.

WINBORNE, Justice.

Appellants, by their assignments of error presented on this appeal, challenge the jurisdiction of the North Carolina Industrial Commission in the premises on the grounds, among others, that at the time of his death, the employee, Odell Aylor, was not a resident of this State within the meaning of the statute G.S. § 97-36.

In this connection, this Court, in interpreting and applying the provisions of G.S. § 97-36 in the case of Reaves v. Earle-Chesterfield Mill Co., 216 N.C. 462, 5 S.E.2d 305, 306, opinion by Seawell, J., declared that "in so far as it depends upon the statute alone, the jurisdiction of the Industrial Commission attaches only (a) if the contract of employment was made in this State; (b) if the employer's place of business is in this State; and (c) if the residence of the employee is in this State. All these circumstances must combine to give the jurisdiction."

And it is a well-settled rule in respect to proceedings under the North Carolina Workmen's Compensation Act, that the claimant has the burden of proving that his or her claim is compensable under the Act. See Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760, and cases cited.

Moreover, while ordinarily findings of fact made by the North Carolina Industrial Commission in respect to liability for compensation under the North Carolina Workmen's Compensation Act are conclusive upon appeal when supported by competent evidence, Francis v. Carolina Wood Turning Co., 204 N.C. 701, 169 S.E. 654, and numerous other cases, yet when the jurisdiction of the Commission to allow a claim for compensation is challenged by an employer, "the findings of fact made by the *272 commission, on which its jurisdiction is dependent, are not conclusive on the superior court, and that said court has both the power and the duty, on the appeal of either party to the proceeding, to consider all the evidence in the record, and find therefrom the jurisdictional facts, without regard to the findings of fact by the commission." So declared this Court in opinion by Connor, J., in the case of Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, 571; and the rule is recognized in these cases: Francis v. Carolina Wood Turning Co., supra; Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Young v. Maryland Mica Co., 212 N.C. 243, 193 S.E. 285; Buchanan v. State Highway & Public Works Comm., 217 N.C. 173, 7 S.E.2d 382; Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730.

In the light of this principle it is not enough that the Judge of Superior Court overrule the exceptions to the findings of fact and conclusions of law, and affirm the findings of fact and conclusions of law made by the Industrial Commission. Hence in so doing in the case in hand, there is error.

Therefore, the judgment of the Superior Court from which the appeal is taken must be, and it is set aside and the case remanded to the Superior Court to the end that the appeal from the Industrial Commission be heard anew on the exceptions filed by defendants, and that jurisdictional facts be found in accordance with this opinion.

Error and remanded.

BARNHILL, C. J., took no part in the consideration or decision of this case.