*1 TERM, 1943. SPRING N. 0.] Hinges. Barber trial de novo. Execution plaintiff, ants in favor of the without motion lodged so entered and the defendants judgment issued upon said and to vacate executing sheriff from such execution restrain the restraining defendants’ motion the Upon hearing the judgment. default vacated; and cause judgment issued and the default duly order was for trial. From this civil issue calendar to he placed directed assigning error. appealed, order the plaintiff a trial novo. there was Therefore, defendants were entitled to- de entered them striking judgment against out the default error issued thereupon. S., to an C.
restraining pursuant action execution R., 531. “. . . if defendant v. R. Barnes has there defense, appealed, and make his even when he appear fails to has to a if the defendant judgment, a trial to entitle the must he & (4). N. C. Prac. Proc. (McIntosh), par. a material issue.” raised p. 817.
Affirmed. BARBER, BARBER, ETHEL M. of GUY Estate A. Administratrix of the MINGES, MINGES, MINGES, E. RICHARD B. L. DEAN CLYDE Individually GRIFFIN, MRS. L. L. MINGES and MRS. MARY MINGES Trading BOTTLING COMPANY. SALISBURY PEPSI-COLA 1943.) (Filed June, and Servant 40e— Master §§ seq., Compensation Act, S., (h), The N. C. Workmen’s C. et deals employment, with the incidents and risks of the contract of included the which negligence appli- of the that relation. It has no accident; intend, hy cation outside the field of industrial general and does not its terms, away rights pertain to take common law or other which general parties public, of the as members disconnected with the the employment. 37— Servant 2. Master § Compensation Expressions Act, S., (r), in the N. C. Workmen’s C. right statutory regarding maintain surrender of the common law or They against are not absolute. must he construed actions within Act, qualified by subject of the and as its the framework purposes. 40b, 40f— Servant 3. Master §§ occupational diseases, dealing unscheduled with certain this Court Compensa- actions to be excluded common law Workmen’s has held admittedly allegedly Act; condition cases the these arose tion out but IN THE SUPREME COURT.
Bakber *2 4. Master and 46a— Servant § general jurisdiction. The Industrial Commission not a is court of jurisdiction beyond implied presumption can have no that it clothed power perform required by with the duties of it the law entrusted to for administration. 5. Master 40f— Servant § The relation master invoked and servant is not when the good picnic a will attends employee at the invitation of the where the paid attendance, penalized did no work and for was nor for nonattendanee, go. nor ordered to 6. Master 47— Servant § S., (b), require (if) plaintiff C. does not to file a claim with instance, Commission, bringing Industrial court of first the action an before Superior in the Court. X, concurring C. in result. Stacy,
Denny, X, Barnhill, X, dissenting. Winborne, X, joins concurring opinion. dissenting opinion.
concurs Appeal Rousseau, J., from by plaintiff Regular at March Term, 1943, of RowaN. Reversed.
The plaintiff brought administratrix damages this action recover for the and death of A. intestate, her which she Guy Barber, was alleges by negligence caused defendants.
The defendants engaged bottling drinks, were soft distributing an with office or at plant Salisbury, Barber was them employed by in that business. Pursuant a custom of an annual providing outing employees and their promotion will, families good an defendants, through agent, Sloop, organized conducted a fishing to South which Barber and trip Carolina, members of family at- tended the invitation the defendants. Part of the was trip made gasoline driven boat down Little River, South and to Carolina, off coast. in an fishing grounds There, attempt to start the engine poured the boat by priming gasoline bottles, with on set fire explosion gasoline vapor, an intestate died as a of burns received. result he of negligence acts are attributed to Sloop
Various the complaint, of an boat, including hiring permitting open unsafe cans and bottles from which the air in used, to be boat gasoline became saturated exploded by spark from gasoline vapor engine. moved to dismiss the upon The defendants action the ground that Industrial North Carolina Commission had exclusive jurisdiction the Workmen’s controversy Compensation Act, chapter by chapter 123, as amended Laws Public Public Laws TEEM, 1943. SPEING N. CL] Barbee (cid:127) below dismissed Tbe court et (b), seq. see.' Miehie’s Code appealed. ground, action tbat tbe appellant. Linn plaintiff, Frank and Siahle Spruill J. ap- Battle, defendants, Merrell & Clement and Winslow Hayden
pellees. complaint, plaintiff's in tbe J. On facts alleged tbe Seawell, Industrial Commission witbin of tbe demand tbe exclusive right and ber Act, Compensation terms of Workmen’s under tbe tbe of ber wrongful death under C. for tbe S., maintain action defeated? intestate *3 in unless tbe negative tbe
It would seem tbat tbe answer should be relation them, from show that-tbe or reasonable inferences alleged, facts and with time, at tbe parties, of and servant existed between tbe master in death; other- or, in resulting to tbe transaction tbe employ- death was incident tbe causing tbat tbe words, negligence tbe contends plaintiff. is the of tbe She Tbat, simply stated, position ment. statements, negatives in factual these essential tbat its complaint, tbe Act. of tbe defendants position of under tbe Tbe jurisdiction conditions : in as follows their brief expressed all terms, its excludes reme- comprehensive broad and statute, “Tbe whether Commission, plaintiff Industrial through other than tbe dies tbe job; or off tbe whether licensee; job, or whether be be tbe invitee All independently employment. of or employment, arises out accident of into tbe employee merged remedy of an law remedies common forum provided chose not to tbe proceed and if tbe Act, tbe out of court.” ber, she is from lia- immunity this would confer extreme, to its logical Carried on an negligent injury who inflicts employer bility upon of and is any activity bis engaged latter is not while tbe is on tbe duties, way grocer of bis while be tbe scene far tbe right pursuit be has tbe to be tbe of bis or wherever church, or to is too to merit serious attention sweeping contention affairs. Tbe own tbat counsel defense cite certain decisions of this fact tbe except recognized having significance. as tbat Pilley have been which Court Mills, Francis v. Wood Turning v. Cotton will We examine these cases later. 517, 181 on both here, sides, was addressed to issue, this major argument Tbe subject tbe entire matter of almost tbe briefs. Tbe and it constitutes cases, is left tbe subject Pilley Francis tbe condition which of legal to tbat tbe phase controversy, attention however demands supra, tbe now governing appear. principles obvious tbe IN THE SUPREME COURT. . [223 Hinges. Barber I. Section 11 of the as Act reads follows: rights “The and remedies granted herein to an employee where he his employer have accepted act, of this provisions respectively, to pay and accept compensation on account or death acci- personal injury by of dent, shall exclude all rights other of his remedies such employee, personal representative, or of parents, dependents kin, next as against or employer common law account loss otherwise, on such injury, service, or death." Public Laws of 1929, section chapter 120, Michie’s Code, 1939, sec. (r).
The incidence the law is on the status created contract It deals with the incidents and risks that employment, in which coneededly included the negligence relation. no has application accident; outside the field of industrial not intend, does general terms, its common away take law other rights pertain which as parties members of the general public, disconnected with the employment. “The relation of master servant and rights their mutual and liabilities is the primary concern compensation acts. relationship Unless the of employer and the acts have no employee exists, bearing on claim for personal injury damages.” Schneider, 1, p. Vol. sec. 2. Expressions sec. regard- ing right the surrender to maintain common law statutory against actions employer are absolute—not words universal import, time, contact making place circumstance. must They be construed within the framework Act, its qualified by subject and purposes. *4 of of primary purpose legislation this kind is to compel industry
to take care of its own wreckage.
It
is said to be acceptable to both
employee, because it reduces the
of
cost
settlement and
avoids
delay. To the
it
employee,
certainty
means
some sort
compensation
received
of business;
course
it reduces
of loss and
unpredictability
puts it on an actua
basis,
rial
permitting
“overhead,”
it to be treated as
absorbed
the sales
and thus transferred to that universal beast
price,
burden,
economic
State,
85;
Allen v.
160 N. Y. Supp.,
the consumer.
v.
Village Kiel
158 N.
68.W.,
Industrial Commission
It is said to be
(Vis.),
humani
opposed
and economical as
to wasteful
tarian
the conduct
the enter
to the
loss
propriety
keeping
is referred
accident inci
prise,
chargeable
industry
where it
dental to
occurs. Kem
Co.,
nerson
Towboat
89
94
It
Oonn., 367, A.,
v. Thomas
372.
is called
“an
of trade risk.” “Losses incident to industrial
system
economic
pur
wrongs
breakage machinery
like
cost of production.”
suits are
—a
Co.,
Axle
Barber v. the industry responsible Klawinski injury. v. Lake Shore & Co., N. S. 185 Ry. Mich., 152 N. W., 213; Workmen’s Schneider, Compensation Law, Permanent Edition, s. 1. The Industrial Commission jurisdiction. is not court of general
can no have implied jurisdiction beyond presumption clothed with power to perform the duties of it law required by the entrusted to it for administration. As is in legislation often the ease of this type, the more expressions definitive found in are procedural features of the law. See sec. 1, (f), subsection Michie’s of 1939, Code see. 8081 (i) In most (f). jurisdictions having provi- sions the law comparable to sec. of them identical-—the many 11— courts have felt constrained to construe the law as exclusive only injuries for which compensation is and not to provided exclude common law actions no where such provision is made. Barrencotto v. Co., Cocker Saw 194 Y., 139, E., 61; N. Boyer Payer Crescent La., Box 143 Factory. So., 78 596; Donnely Minneapolis Mfg. Co., 161 201 Minn., 240, N. W., v. National Bronze & Alum- Triff inum 135 Foundry St., Ohio 20 N. E. 121 (2d), 232, R., A. L. 1131, overruling Zajachuck Storage v. Willard Battery 106 Ohio St., 538, Lee, E., 405, & C. Co. v. Mobley Ohio St., 69, E., 745, N. 100 A. L. R., 511; Covington Berkeley Granite Corp., Ga., 235, annotations 100 A. R., See L. 121 A. L. 1143. Our Court R., has observed this but rule; dealing with certain unscheduled occupational diseases, has held common law excluded, actions to Act no although makes provision compen v. American sation. Lee Enka Corporation, 193 S. v. American Enka Murphy Corporation, 213 N. C., 218, 195 S. 536. But in cases condition these out admittedly allegedly arose The cases do not support defendants’ contention.
In Francis v. Wood Turning E., 628, upon which the defendants mainly rely, decision, as the “is opinion states, affirmed authority Pilley v. Cotton Mills (201 S. E., 479),” and it is said that the facts “in case are identical the instant case.” But two cases are similar legal history— fact that before common law action was to, resorted the claims were Industrial presented Commission, compensation denied, taken. appeal fact, presently see, we shall there was appeal one was denied in compensation supra, taken after the Francis but the *5 far from identical. facts cases are these case, Pilley supra,
The facts the are not stated report. the They found I. C. Docket No. 43. may be File fell on Billey while and in of his as a watchman in duty employment the course defendant’s THE IN SUPREME COURT. V.
Barber MlNGES. cotton mill, but was denied because it compensation was found that be as a collapsed result a combination of from diseases which he had for a suffered long complaint while. brought The the case the Superior Court substantially states that his injury during he received the course through and arising accident out it, demurrer this Court out points paragraph complaint stating. so Briefs, Bound Records and Fall 1931, 5, Term No. 172. As distinguished resting upon that ground, the result reached case, Pilley supra, is correct. case, controversy in-the Francis on supra, came here appeal twice—Francis v. Wood Turning Francis Turning Wood here, Too supra. tedious to repeat history of the case and background factual not found in the later report may be from gotten the first fuller in 204 N. report et seq. say
It is sufficient to the case came here on appeal a judgment in the court below sustaining a demurrer grounded fact that had been sustained on conflicting evidence thereto- fore, and the law as laid down in had the former become law appeal case; plea that, the further had resorted to the Industrial Commission had not from an appealed adverse decision, judgment under the that tribunal judicata (Records the matter was res Briefs, Term, 1935, Fall No. 17). Upon the and pro- facts case, history ease, cedural reached in the the result Francis supra. case, In might supra, be sustained. neither the nor Pilley the Francis case, supra, question was discussed. presented opinions, here implications. the facts are too broad in upon reported, seated alone their II. Under our Court always the realistic view has taken of the con- hold employment, tract we cannot master-servant relation is gesture employee evoked the social good when attends a will invitation of picnic employer. There are cases so guardedly holding under the circumstances is particular true. Corp., Conn., Stakonis v. United Advertising A., 334; Public Mo. E. City Conklin Kansas Serv. Ap., 309, v. Wallach 608; Sinclair 228 N. Y. In (2d), Laundry, S., other Asphaltum it has been F. Becker Roofing cases denied: Co. v. Industrial Gommission, 333 Maeda Ill., 340, E., 668; v. Department of 72 P. Wash., Labor Industry, (2d), the Stakonis case, supra, it noted that was under direct order to awith picnic, penalty not; attend the disobedience he did but by dictum it is said that where invitation to there mere enjoy hospi there would be no direct relation tality between the out Furthermore, and the ing weight some fact given *6 N. 0.] TERM, SPRING
BARBER "It fairly that Stakonis was to be for the attendance. paid day’s said also that of his was one acting fulfilling orders he which doing something the duties or at least he was employment, it.” had annexed to incidental to employment this defendant the made In Hildebrand v. McDowell C., Furniture the was killed on a furni- employee returning Sunday while had of the ture which he exposition superintendent attended the not work for his factory for the and did merely pleasure trip, the arising an accident employer on the In that trip. defining while in course definition found repeats the of the the Court the employment, in in Conrad v. which “occurs Foundry C., 723, as one involved in the the course the and as the result of risk employment or incident to which it is employment, it, required or to conditions under in to be and finds that out of and the course performed”; phrase accidents which to servant employment happen “embraces those he duty while he is of some function which engaged discharge further, directly authorized to undertake and which is calculated to is on master’s But was denied business.” indirectly, compensation relation activity employee had no ground he owed master did not tend to further his business. duty not work on was employer trip, Court said: “He did for his he compelled go.” Equalization, In Perdue v. Board of an award teacher
this Court affirmed made to dependents at a coaching at who was killed while graded Statesville, schools And in employed. from the which was game away football school he Education, v. Board the Court affirmed Callihan Industrial Commission to a teacher vocational award made on the schools, who at the time of his was subjects public work. How monthly attend a others like meeting engaged toway was to connect the of these cases the evidence sufficient ever, each of employment. with the contract definitely activities on compensation denied, principle In each where it was case which it was had no connection with the claimed upon facts therefore, which neces- and, the master-servant relation is of Workmen’s Act absent. Compensation sary application alone, an incident? this relation is compensability To bar occurred outing sponsored employers the case Inc., Stores, Ridout v. Bose’s Sunday (see— non was not nor 642) paid attendance, penalized —the He did attendance, go, merely nor ordered but was invited. no work that on this occasion he was under control suggestion and there no He owed employer any respect. and direction of the duty IN THE SUPEEME COUET. Hinges. Barber or to except other invited occasion guests, itself, *7 which was of involved and the observance amenities. civility the social a necessary seems conclusion that the Workmen’s Act Compensation has no relation to the circumstances of his case.
The found in 449, 1933, amendment made ch. Public Laws of Michie’s Code of 1939 as 8081 (if) Sec. not (b), require plaintiff does Commission, file her claim with the Industrial of court first instance, bringing before her action Court. The section Superior was intended to defer the in which action in proper might time court brought mistaken when resort the Commission has been made. Such other it implications as have are not favorable to the defend- of of question jurisdiction. ants exclusiveness We have to do with nothing whether the can recover in her present only action. that the facts of say alleged We the case as in the do bring jurisdiction it within of complaint Industrial Commission.
The of the court judgment below dismissing action is Eeversed.
Stacy, C. J., concurring in complaint result: no claim The states for compensation within the Workmen’s Wilson v. Compensation Act. Hildebrand, Mooresville, 222 C., N. 283; v. 212 C., Furniture N. 193 S. 100, E., 294. And allegation while the employer- employee relationship might have warranted the Industrial Commission in so adjudging, had claim compensation filed it, been which accordingly would have provisions tolled the C. S., 160 until final judgment by 449, virtue See. Chap. 2, (Michie’s Public Laws 1933 8081 Code [ff]), jurisdiction still the Superior Court attaches in first instance because the character of the cause action alleged. Banks, Okla. Steel v. Cast. Co. 181 Okla., 14 P. 1168. 503, (2d), The commercial, occupational professional status employer-employee which is relationship covered exclusively by the Workmen’s Compen- sation Act lacking the time of and in respect to the transaction out of which plaintiff’s intestate’s arose his death ensued. Stores, Inc., Ridout v. N. C., Rose's 205 S. E., 171 McCune v. Gline, Mfg. (2d), S. E. 219. Liverman See v. C., E., 849. S. relation was after the similitude of nearly invitor invitee more that of host and White guest. v. McCabe, 208 Hall, C., 204 N. C., Norfleet The scene is outside the field industrial employ- coverage the Workmen’s Compensation ment Act. Hollowell TEEM, 1943. SPEING N. 0.] Babber defeats Tbis Dept. Devp., Con. jurisdictional challenge. opinion. DeNNY, J., joins concurring majority drafted, as now J., dissenting: While, Babnhill, I am still decision, states the
opinion correctly question presented reached. unable concur the conclusion raised question on demurrer. only
The case comes here If from the pleadings demurrer that of jurisdiction. appears employ- had no relation negligence alleged complaint Court Superior concerned the or to the business with which it was ment Hence, had should be jurisdiction judgment .reversed. us for presented in the briefs one debated question Industrial Commission have decision is this: Does the *8 in does it is, effect, in that complaint; of action set out the the cause at relation existed that the master-servant pleadings the appear and death? alleged injury in to respect of and the the time said 305, 216 5 E. it is (2d), In Reaves v. Mill S. of the jurisdiction the that insofar as it the statute alone depends upon of if contract (a) Industrial Commission attaches of business is this State; place in this if the (b) employer’s made State. A prac and of this State; (c) employee the residence requi addition of one other requires of the statute application tical of and in relation must at the time : exist employer-employee site the or transaction out of which such or death to the injury to the respect to agreement. arose. On this we now seem be or death injury and rights as follows: “The The relevant of the statute is provision and his have employer remedies herein to an where he granted employee accept to and com- Act, respectively, pay of this accepted provisions accident, or death shall injury on account of pensation personal of his employee, personal all other and remedies such rights exclude otherwise, at common law or as against employer ... representative, or death.” Sec. Oh. service, of such loss of injury, account here. sole no limitation or qualification 1929. There is L., P. relation employer-employee is that requisite arose. That this is the criterion injury out of which the transaction If this relation all of the statute. exists import is the clear jurisdiction and no con- ground There is middle excluded. other remedies are Commission, of the whatever it jurisdiction. current be, is exclusive. relation exists the is liable employer-employee When the manner the Act. specified Sec. extent IN THE SUPREME COURT. 222
Barber v. Suck rights 11, and exclusive, remedies are sec. the Industrial Com jurisdiction. mission Hedgepeth alone has Casualty Mills, S. Pilley v. Cotton N. C., S. 479; Tscheiller v. Weaving Cooke Gillis, C.,N. E. (2d), admitted relation pleadings that of employer and n employee, as those terms defined in Act, existed between the deceased the defendant Did it exist at employer. time or injury death transaction in.relation out n ofwhich such death arose? If the so pleadings disclose the judgment should be affirmed.
. It is alleged in the that complaint it had become or policy custom defendants annual provide outing an picnic their em- ployees outing “said picnic being for the purpose promoting employer-employee relations”; pursuant said policy arrange- ment was for an outing picnic made at Southport, O., group employees; plaintiff’s its that the was included in said intestate group at solicitation of the defendants’ went as a manager; he member of said that said group; group employees, including plaintiff’s intes- was under the direction tate, supervision said manager and all n expenses employees said being paid defendants; were manager “Nightingale” chartered the with its crew for the purpose said taking plaintiff’s employees, including intestate, out to the fishing grounds the Atlantic Ocean; that the intestate and plaintiff’s in the boarded employees group other the boat the direction said manager.. The such, in- extended the invitation. The *9 testate, as was for of employee, accepted. The the benefit the trip of business was, the for time employer. “Nightingale” being, The the of premises employer. was on at employee premises the direction of manager of the and to employer participate pro- moting of the best interest his master. annual had become picnic a custom—an incident the business —for the purpose promoting employer-employee relations, phase a of business its vitally affecting neglected successful too often operation completely ignored busi- by management. Here, least, employers ness we have who recognize that their are than chattels and that employees upon more mere their will and success of business in which good friendship they are all engaged, employers some some as employees, very largely am one, unwilling position that this depends. I, take enter- this had no prompted worthy motive, relation to the prise, by employ- it I Instead, to the business which was concerned. insist ment and substantially it related to the business and to directly that the best 223 TEEM, 1943. SPEING N. CL] V. MlNSES. Barber to promote It tended employee. of both and the employer
interest continuing and to assurance give the business of the interested. both were this employees. profitable employment to this relation existed then, employer-employee Surely, transaction. in return than
That deceased other entertainment nothing received that employment; no of his time; performed duty for his that he and that employment; or in course of the did not arise out of injury bearing only are all facts to the employment the risk was incident jurisdiction. do not control They upon compensability. jurisdiction hold Commission has
To hold otherwise is but to that the case non-compensable and every compensable when the claim is it would Likewise, require of jurisdiction. must dismissed want of decisions. long us to overrule line Indus- of the jurisdiction
Nor do I agree that, order sustain the the view for us to take necessary trial Commission this it is parties between that where contract exists all negligent injury whatever, Act, then purpose by operation employ- however disconnected with the nature, of whatever consummated, is or under whatever circumstances ment and wherever Industrial Commission. jurisdiction within the exclusively matter ¥e defendants. view advanced it is This, true, apparently order sus- argument all their however, adopt not required, that affirmatively appears it this record upon tain contention claim. jurisdiction Commission has the Industrial of employment of or in the course That the did not arise out not incident to the employ- from a risk which was resulted The existence jurisdiction. ment are means determinative jurisdiction ascertained after facts is to be non-existence these not defeat the and their non-existence does assumed relation is all is required. Commission. The existence Co., v. E., 294; Lockey 193 S. C., Hildebrand v. Furniture Cohen, 342; 196 S. Davis v. Meck- C., 356, E., & 213 N. Goldman County, Dependents E., 604; 214 N. C., lenburg of Phifer Co.,& 147; Weatherly Bray 200 N. 156 S. Dairy, C., Co., 215 cited; and cases Lassiter v. Tel. N. C., 160, Mooresville, C., 283; 542; Wilson v. (2d), S. E. Gorp., Davis Veneer C., Loving v. T. A. Bryan Co., 204 N. Turning Francis v. Wood *10 Power 205 N. S. C., 34, Beavers v. 654; v. Co., Porter 206 N. Machine Smith v. E. (2d), Noland THE IN SUPREME COURT. Miwges.
Barber case, In the Hildebrand supra, the tended to show that the evidence defendant furniture manufacturer entered an exhibit in exposition of finished that the furniture; to to exposition solely was sell furniture retailers and could in no way help employees defendant’s to methods manufacture their usefulness improve defendant; that glue room, foreman with other along foremen of the was plant, to go; asked that who to employees elected not for time go paid were on given were orders while but that trip, part their expenses paid by defendant, requested intestate was to work week go after the end as a matter of as an courtesy “outing” pleasure trip. Claimant’s intestate was killed an auto- he was driving mobile accident while the car of his fellow employee to in which hack town the defendant’s plant was located. case, In the Smith supra, left his place employment, to a own went store convenience and was killed when two armed men undertook to rob the merchant. case,
In the Porter supra, the employee used his ear for employer’s injured a and was pleasure trip week-end trip. return In the Beaver a supra, private photographer was taking group a picture shift of the mill night employees on the premises of the T,he had no employer. taken; interest having picture business; it was not use it included those volun- who appear wished to tarily group; the photographer alone intended to had not profit; employees begun their work. The bench on which claimant and others sitting collapsed, were injuring claimant. undertaking analyze
"Without the other it cited cases is sufficient that say the facts were similar that affirmatively each case it that appeared at the time injury employee was about his master’s business from a risk resulted which was not to his work. In each cited incident case above the Court sustained the jurisdiction of the Industrial Commission. it said
But none these cases did Court make jurisdiction. reference to On this point, is the strength silence the decisions.
Our is derivative. If inferior juris court is without none, diction have and it has been we the consistent Court policy this on motion or ex mero motu'so in jurisdiction dismiss soon as defect instant appear. is made “The. the court perceives it is about to forbidden or exercising, exercise, ungranted power, action; and, it does stay not, is, its such action ought law, McNeill, 22 C., 291; Burroughs Washington nullity. County McCune v. C., 637; Mfg. Land S. E. *11 TERM, SPRING 1943. 0.] Barber v. Minués. Leonard, ante, Shepard v.
(2d), 219; 110. p. Hence, when we con sidered these and the other cases of many like which been import have before'this Court on ofwe, the merits necessity, jurisdic sustained the tion of-the Industrial Commission. If we were in Hildebrand v. Furni- correct so in doing, particularly
ture supra; Co.., Porter v. Noland supra, Beaver v. Power supra, when nothing more than the and an relationship injury appeared, I cannot perceive how can we escape same conclusion here.
Sec. 2, Ch. 449, L., P. 1933, to an my mind, evidences intent on the part of Legislature employee shall test his first before rights the Industrial Commission. Otherwise, provision converse would been have made so that if proceeds he in the Court and Superior loses he will then have time to claim present his to the Commission. He is if protected he fails to establish the employer-employee relation before but commission he has other in he, recourse the beginning, seeks to provisions evade the Act. Ch. P. 1929. L., In any event, this statute suggestion that the conclusion rebuts any the Industrial jurisdiction Commission has a “No Man’s creates in Land” respect to of claims of employees injuries to shown have no relation to the the event com- mission finds that the employer-employee relation did not exist at of and in time transaction out of which such injury arose the doors of Superior Court are still open to the He can then employee. present his cause in that forum.
The case comes to this: seeking now to assert a her right intestate surrendered exchange the benefits him accruing to the Act. should She required present her cause in the tribunal created Act.
Since this dissent was tendered then re-drafted to meet made changed in the majority opinion there been additional have both in changes, and in form, substance majority opinion. “Nor is this all. Since writing the above answer theory formerly advanced majority, concurring opinion has been filed herein. The same pro Homes, Inc., Fvans v. Bochingham, cedure was followed in the ease Here, as there, the concurrence gives significance added ’ J., Stacy, C. to the dissent.” Williams v. dissenting opinion McLean, p. 231, (2d), E.
Due these circumstances further the form of change this dissent be in-order. Be that as it may, my one only object law of express my views the case —now part adopted by This I have done. I am majority. content to let it stand as written. However, it is for me to add necessary something reply.
8—223 COURT. IN TI-IE SUPREME Motges.
Barber Tbis made. In Hildebrand v. Furniture an award sufra, disclose that failed to the evidence Court reversed tbe reason *12 employment. in and out of and the course injury the death arose all I am This is opinion. in paragraph is so stated the first into the decision. reading capable E., 654, 169 S. C., 701,
On
first
Francis
204 N.
appeal
the
the
relation existed
employer-employee
this Court
held that
specifically
the
then denied compensa-
and the cause was remanded. The Commission
and a demurrer was sus-
Superior
tion. Francis sued
the
Court
grounds
judgment
It is said that we affirmed
the
the
tained.
say
was res
Suffice it to
judicata.
the Industrial Commission
had no
no order it made could be res
jurisdiction,
Commission
the
nothing.
order would be a
and a
decides
judicata..
nullity
nullity
Such
Rut
cases out of the
we
write the Hildebrand
the Francis
I have
books and
still remain numerous cases to the
effect.
there
same
cited in
majority
concurring
read
care the cases
the
far
I can
as well as those cited here. So
find we have
opinion,
only
two
in which
was decided
claimant
adversely
decisions
the cause”
relation
not
employer-employee
for the reason that
shown
two
respect
injury.
at the
to the
exceptions
exist
time
Inc.,
Stores,
affirmed. If not, it should be reversed. I vote affirm.
WiNBORNE,-J., concurs in dissent. ELSIE E. BROOCKS, Husband, BROOCKS T. A. L. CONSTANCE MUIRHEAD and WILLIAM MUIRHEAD.
(Filed June, 1943.) Municipal Corporations Dedication 4: §§ 29— §§ lots, platted streets, When the owner of land has it subdivided and into alleys, conveys and sells and the lots or of them to to with reference plat, thereby alleys, the the use of the them, he dedicates the streets and and all of *13 purchasers claiming them, pub- and those and to the lic, accepted by necessary alleys opened and it is not for such streets and be governing body city they of the town or are within municipality. limits Estoppel 2. Dedication 4: 3— §§ § surveyed platted sold, lots, showing Where lands have been streets, squares, parks alleys, original claiming owner and those him, knowledge facts, thereof, under express or with notice either constructive, estopped repudiate implied representa- alleys, parks places kept open tion that public use, although public. streets such will be (cid:127) presently opened accepted or used Municipal Corporations 3. Dedication 4: 14— § § alleyways If streets or in a subdivision of lands be obstructed there thereby public nuisance, purchaser, prop- created erty and each or owner of can, by injunction proper proceeding, therein or other have the nui- abated, presumption sance as there is all such cases an irrebuttable peculiar injury. owner has suffered law that such loss or Appeal Hamilton, by defendants from Special Judge, at January of Durham. Term, 1943, Civil action have plaintiff declared legal owner of right of feme
ingress egress upon certain alleyway enjoin defendants obstructing alleyway to require defendant to remove feme obstructions therefrom. defendants, While their answer, deny the existence alleyway and of therein, interest plaintiffs they allege the complaint, facts uncontroverted : appear these L. Griffin and others, James who year owned certain land development residential
adjoining city Durham known as