Lead Opinion
The sole issue on this appeal is whether the Court of Appeals correctly affirmed the trial court’s conclusion that plaintiff Shane Tucker was an employee of the defendant, A. T. Williams Oil Company. For the reasons set forth in this opinion, we conclude that the Court of Appeals was correct in so affirming.
On 1 December 1982, plaintiff Shane Tucker, then aged eight, slipped on a sidewalk on defendant’s property and fell, cutting his hand. He and his mother, plaintiff Sylvia Tucker, filed this action against defendant on 26 June 1984. In their complaint, plaintiffs alleged in essence that Shane Tucker’s injuries were proximately caused by defendant’s negligence. They sought damages for medical expenses, lost wages, and pain and suffering. R. Douglas Lem
Defendant filed an answer and raised as one of its defenses lack of subject matter jurisdiction. It asserted that the child Shane was its employee as defined by the Workers’ Compensation Act and that the Industrial Commission accordingly had exclusive jurisdiction over plaintiffs’ claim. Following preliminary discovery, defendant moved to dismiss for lack of subject matter jurisdiction. Upon the parties’ stipulation that the trial judge find jurisdictional facts, Judge DeRamus made findings and concluded that Shane was an employee injured within the course and scope of his employment with defendant as defined in the Workers’ Compensation Act. The judge therefore dismissed plaintiffs’ action for lack of subject matter jurisdiction. Plaintiffs appealed to the Court of Appeals, which affirmed with a dissent by Webb, J., on the question of whether the evidence supported the conclusion that plaintiff Shane was an employee of defendant.
“By statute the Superior Court is divested of original jurisdiction of all actions which come within the provisions of the Workmen’s Compensation Act.” Morse v. Curtis,
The question of subject matter jurisdiction may be raised at any time, even in the Supreme Court. Askew v. Tire Co.,
This Court has held repeatedly that jurisdictional facts found by the Industrial Commission, even when supported by competent evidence, are not binding upon the courts on appeal, and that that the reviewing court has the duty to make its own independent findings. See Dowdy v. Fieldcrest Mills,
Our review of the applicable law in this State, however, shows that this Court had traditionally considered the superior court’s findings of jurisdictional fact to be binding on appeal if supported by the evidence when the question was whether the Industrial Commission or the superior court had jurisdiction over a claim.
The trial judge made the following findings of facts pertinent to this issue:
3. Prior to the incident referred to in the complaint, Ken Schneiderman was employed as the manager of the defendant’s place of business on Wendover Avenue in Greensboro, North Carolina. As manager, Schneiderman had the authority to hire and fire such employees as he deemed necessary to assist him in the operation of the business, and all wages paid to any of the employees which he hired were deducted from the commission which he received from the defendant.
4. Ken Schneiderman employed the minor plaintiff, and paid him varying amounts to perform duties at the defendant’s service station — convenience store, including putting up cigarettes, picking up trash, stocking bottles in the cooler, and other odd jobs from time to time while the minor’s mother, Sylvia A. Tucker, worked as a cashier for the store.
Exception No. l
*582 5. At the time the minor plaintiff was injured in the accident referred to in the complaint, the minor plaintiff had been performing chores of stocking cigarettes, picking up trash, and other work which was in the course of the trade or business of defendant A. T. Williams Oil Company.
Exception No. 2
6. At the time of the incident described in the complaint, the minor plaintiff Jonathan Shane Tucker was a casual employee of defendant A. T. Williams Oil Company, and was performing duties within the course of the trade and business of A. T. Williams Oil Company in the operation of the gas station and convenience store on Wendover Avenue in Greensboro, North Carolina.
Exception No. 3
7. Defendant A. T. Williams Oil Company employs more than four persons, and is subject to the provisions of the North Carolina Workers Compensation Act, N.C.G.S. § 97-1, et seq.
Our review of the record shows that there is ample evidence to support each disputed finding.
Plaintiff Shane testified at his deposition that he routinely accompanied his mother to her job as part-time cashier at defendant’s store and service station, a Wilco. According to his description, he ordinarily did his homework, ate a snack, and performed odd jobs about the station. These jobs consisted of picking up trash in the store, taking out the garbage, and stocking cigarettes and drinks. He had been doing these jobs for almost a month at the time of the accident. The child said that the jobs generally took him between half an hour and one hour to complete. In return, the store manager, Ken Schneiderman, would pay him a dollar, occasionally more depending on the amount of work he had done. A fair reading of the child’s testimony discloses that he clearly expected to be paid for his efforts.
The child’s mother, Sylvia Tucker, corroborated Shane’s account. She testified that at the time of the accident, she was working from 4 p.m. to 7 p.m. as a part-time cashier at Wilco. Schneiderman had Shane “put up stock, straighten the shelves up and pick up trash inside the building” and occasionally outside as well. Mrs. Tucker testified that her understanding was that the child was going to be paid for what he did. Although she told Schneiderman originally that Shane would work without being paid, he rejected this offer and told her and the child that he would pay Shane for his work. She believed that Schneiderman paid Shane a dollar a day.
Schneiderman signed an affidavit, introduced into evidence, stating that he had hired Shane Tucker for a few dollars to put up cigarettes but with no set hours or wages.
Also before the judge was plaintiffs’ verified complaint, which describes plaintiff Shane as defendant’s employee and says that he was “casually hired and paid $1.00 a day by the manager of defendant’s station, Ken Schneiderman, to put up cigarettes and to do other odd jobs on defendant’s premises whenever assistance was needed . . . .”
We believe that this evidence amply supports the trial judge’s findings that Schneiderman, who had the authority to hire and fire employees, hired the minor plaintiff to do odd jobs as needed in defendant’s service station/convenience store business. Specifically, these tasks included stocking cigarettes and drinks, and picking up trash. At the time of the accident, Shane was engaged in doing these tasks.
We also agree with the trial judge’s conclusion that plaintiff Shane was defendant’s employee at the time of the accident. Once the underlying facts are established, the nature of the relationship is a question of law and fully reviewable on appeal. Hayes v. Elon College,
*584 ‘An employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem to be essential to his right to receive compensation under the Workmen’s Compensation Act . . . .’
Lucas v. Stores,
Plaintiffs, however, contend that the evidence does not support the facts and the facts do not support the conclusion.
First, they argue that none of the parties considered Shane to be defendant’s employee. They note that Shane at one point said that his employment was “not exactly” a job. Furthermore, in his deposition testimony, Schneiderman explicitly denied hiring Shane, retracting the statement in his affidavit.
We do not find plaintiffs’ argument on this point persuasive.
Initially, we note that the parties’ own conclusion about their legal relationship is not binding on the court. See Lloyd v. Jenkins Context Co.,
Nor do we believe that Schneiderman’s denial of hiring Shane was binding upon the trial judge. Schneiderman essentially gave inconsistent testimony. Initially, in his affidavit, he said that he had hired Shane. Later, in his deposition, he denied hiring him. His deposition testimony contradicted that of Shane and Mrs. Tucker on some points — most notably on the frequency of the child’s presence at the Wilco. The trial judge resolved these con
Moreover, we note that Mrs. Tucker was unsure of her own status. She testified that she did not know whether she herself was a “real employee.”
Second, plaintiffs argue that Shane could not have been an employee because Schneiderman did not comply with certain procedural formalities. He did not take an application from Shane or report him on the list of employees he turned into his supervisor for withholding purposes. His normal practice was to pay employees from the cash register;
We do not believe that any of these factors is dispositive. Our Court of Appeals has held that failure to follow technical procedures such as withholding F.I.C.A. and income taxes is not controlling on the issue of whether an employer-employee relationship exists. See Durham v. McLamb,
Third, plaintiffs contend that Shane was not an employee but instead performed gratuitous services. In addition to Schneider-man’s testimony denying that he hired Shane, rejected by the trial judge, plaintiffs cite Mrs. Tucker’s original statement to
Finally, plaintiffs contend that if Shane was an employee, he was Schneiderman’s personal employee. We disagree. Schneider-man had the authority to hire employees for defendant, and the evidence shows and the trial judge found that the tasks the child performed were in the course of defendant’s business, not Schneiderman’s personal affairs. We find the facts of this case similar to those of Michaux v. Bottling Co.,
For all of the foregoing reasons, the decision of the Court of Appeals is affirmed.
Affirmed.
Notes
. The argument has been made that since the minor plaintiff may have been illegally employed, see N.C.G.S. § 95-25.5, defendant should not be allowed to prevail upon this defense. However, “[a] universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.” Burgess v. Gibbs,
. As a historical note that may be of some interest, originally, appeals from the Industrial Commission were to the superior court. 1929 N.C. Sess. Laws ch. 120, § 60. The superior court sat in this capacity as a reviewing court, and the find
. Although plaintiff did not except to finding #3, we note that the evidence supporting it is uncontradicted.
. Schneiderman testified that he hired his own children to work at the Wilco and that defendant promoted this arrangement because “you could work your kids for less money.” See also § 95-25.5(i) (1985) (most of the provisions of the statute prohibiting child labor do not apply to their parents).
. He paid their net pay out of the register and submitted their names and pay records to his supervisor for payment of payroll taxes.
Dissenting Opinion
dissenting.
I must respectfully dissent. First, the majority opinion allows the defendant corporation to profit from its own illegal act. Here, defendant corporation claims that it hired plaintiff Shane, an eight-year-old child, as an employee. Defendant’s act would be a direct violation of N.C.G.S. § 95-25.5(d), punishable by imposition of civil penalties. This statute establishes the public policy of this state that it is unlawful for employers to employ children thirteen years of age or less.
The public policy of North Carolina also will not permit a wrongdoer to take advantage of or enrich itself as a result of its own wrong. Carver v. Carver,
Defendant corporation seeks to defeat the infant plaintiffs cause for personal injuries resulting from the negligence of defendant by using as a shield its own unlawful act of employing the child. This case is not like McNair v. Ward,
Even if this Court allows defendant to rely upon an inequitable defense, the evidence fails, in at least one respect, to support a finding that plaintiff child was defendant’s employee. We must not overlook that defendant has the burden of proof to sustain its plea in bar. As the majority states, the right to demand payment from the employer, A. T. Williams Oil Company, is an essential element of the employment status. Defendant has failed to carry its burden as to this element.
The evidence in many respects is in conflict. However, defendant has failed to produce a shred of evidence that the eight-year-old child had a right to demand payment for his services from A. T. Williams Oil Company. Also, there is no evidence that plaintiff child could have made such a demand from Schneider-man, albeit defendant argues that plaintiff was its employee and not Schneiderman’s. All of the testimony showed that the infrequent payment of amounts ranging from twenty-five cents to a dollar came out of Schneiderman’s own money, out of his own
On the other hand, the record is replete with evidence that plaintiff child was not an employee of defendant’s. Shane was not a listed employee for workers’ compensation purposes; his name was not reported to the defendant corporation for tax withholding purposes; Schneiderman testified explicitly that Shane was not an employee.
The majority relies upon Michaux v. Bottling Co.,
I submit that the more analogous case is Lucas v. Stores,
Assuming arguendo that defendant may rely upon its plea in bar and that there is sufficient evidence to support a finding that Shane was an employee of defendant’s, the trial court erred in sustaining defendant’s plea in bar. If it is true, as defendant insists, that there was a contract of employment between Shane and the defendant, it was a contract with an infant and voidable at the option of the infant, Shane. Personnel Corp. v. Rogers,
By bringing this common law action against defendant, the infant plaintiff has disavowed the former contract between the parties and relinquished any rights he may have had under the Workers’ Compensation Act by virtue of the contract. By disavowing the contract, he has elected to pursue his common law remedy. That Shane avoided the contract by instituting the action is of no moment; it is just as effective as writing a letter of disaffirmance to defendant prior to commencing the action. The lawsuit and the evidence and contentions by plaintiff Shane clearly notified defendant that the contract was avoided. Upon plaintiff infant’s disaffirmance of the contract, it was void ab initio and defendant could not rely upon a nonexisting contract to defeat plaintiff infant’s action.