{ "id": 8554086, "name": "FRANK KILBY v. JESSE WILTON DOWDLE and CAROLINA TRUCK & BODY COMPANY, INC.", "name_abbreviation": "Kilby v. Dowdle", "decision_date": "1969-04-30", "docket_number": "No. 6928SC38", "first_page": "450", "last_page": "453", "citations": [ { "type": "official", "cite": "4 N.C. App. 450" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "110 S.E. 2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622288 ], "opinion_index": 0, "case_paths": [ "/nc/251/0047-01" ] }, { "cite": "137 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568279 ], "opinion_index": 0, "case_paths": [ "/nc/262/0462-01" ] } ], "analysis": { "cardinality": 391, "char_count": 7209, "ocr_confidence": 0.562, "pagerank": { "raw": 4.738389154841362e-07, "percentile": 0.9296816146423981 }, "sha256": "1e55ace115639c079c79f8891c8b74ac7910f1ccbcc537a51cf09fa37d0b0b98", "simhash": "1:17b1e385107fea5b", "word_count": 1206 }, "last_updated": "2023-07-14T18:50:38.610889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mallabd, C.J., and PARKER, J., concur." ], "parties": [ "FRANK KILBY v. JESSE WILTON DOWDLE and CAROLINA TRUCK & BODY COMPANY, INC." ], "opinions": [ { "text": "Britt, J.\nAn appeal lies immediately from refusal to dismiss a cause for want of jurisdiction. 1 Strong, N.C. Index 2d, Appeal and Error, \u00a7 6, p. 118.\nCarolina 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\u2019s 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\u2019s Compensation Act and had dismissed the action. Parker, J. (now C.J.), noted that \u201c[w]hen the trial judge in the absence of the jury heard and decided all questions relating to the court\u2019s jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent 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.)\u201d We hold that the superior court did have jurisdiction to pass upon the plea in bar.\nCarolina\u2019s assignments of error to the court\u2019s 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.\nCarolina\u2019s assignments of error to the court\u2019s 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. 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.\nThe plea in bar was properly overruled, and the judgment of the superior court is\nAffirmed.\nMallabd, C.J., and PARKER, J., concur.", "type": "majority", "author": "Britt, J." } ], "attorneys": [ "Gudger & Erwin by Samuel J. Crow for plaintiff appellee.", "TJzzell & DuMont by Harry DuMont for defendant appellant." ], "corrections": "", "head_matter": "FRANK KILBY v. JESSE WILTON DOWDLE and CAROLINA TRUCK & BODY COMPANY, INC.\nNo. 6928SC38\n(Filed 30 April 1969)\n1. Appeal and Error \u00a7 6\u2014 orders appealable \u2014 jurisdictional question\nAn appeal lies immediately from refusal to dismiss a cause for want of jurisdiction.\n2. Courts \u00a7 2\u2014 authority of court to determine jurisdiction\nIn an action in the superior court to recover for personal injuries, the court has jurisdiction to pass upon defendant\u2019s plea in bar that the Industrial Commission had exclusive jurisdiction of the claim.\n3. Appeal and Error \u00a7 57\u2014 review of findings of fact\nFindings of fact by the court which are supported by competent evidence are binding and conclusive on appeal, notwithstanding there was evidence contra.\n4. Master and Servant \u00a7 60\u2014 workmen\u2019s compensation \u2014 injuries com-pensable \u2014 employee\u2019s personal mission\nTrial court\u2019s conclusions that employee was a guest passenger in his employer\u2019s truck at the time he was injured, and not an employee acting within the course and scope of employment, and that the injuries were not compensable under the Workmen\u2019s Compensation Act, me held proper upon findings of fact that (1) the plaintiff traveled to another state for the purpose of visiting relatives, (2) his employer\u2019s plant manager offered to have a fellow employee bring plaintiff back on the return trip, (3) the fellow employee would have made the trip at the same time on the same route regardless of plaintiff\u2019s presence, (4) it was not the employer\u2019s policy to have two drivers or a relief driver on such a trip, and (5) at the time of the accident plaintiff was not performing any services of benefit to his employer.\nAppeal by defendant Carolina Truck & Body Co., Inc. from McLean, J., at the 24 June 1968 Session of BuNCombe Superior Court.\nPlaintiff filed his complaint 29 June 1967, alleging that he was a guest passenger in a truck operated by defendant Dowdle as agent for defendant Carolina Truck & Body Co., Inc. (Carolina), that the truck was traveling south on U. S. Highway 52 in Madison County, Kentucky, and that he (plaintiff) sustained serious injury when the truck overturned due to the driver's negligence. Plaintiff alleged numerous acts of negligence on the part of the defendants, including unreasonable speed and failure to obey a stop sign.\nDefendant Carolina filed answer 21 August 1967, denying the material allegations of the complaint. It also alleged, as a plea in bar, that the plaintiff at the time of the accident was an employee of Carolina and that the Industrial Commission had exclusive jurisdiction of the claim.\nThe plea in bar was heard by McLean, J., who made findings of fact substantially as follows: Prior to 12 June 1966, plaintiff was a truck repairman and mechanic employed by the defendant Carolina at its place of business in Asheville, N. C., and compensated at an hourly rate. On 10 June 1966, at the conclusion of his normal workday, plaintiff went to Georgetown, Kentucky, for the purpose of visiting relatives, traveling part of the way as guest of a fellow employee and part of the way by bus. Before plaintiff left Carolina\u2019s premises, its plant manager, upon learning of the proposed trip, offered to have defendant Dowdle stop at Georgetown, on his way back from Pontiac, Michigan, and pick up plaintiff in order to save plaintiff the bus trip back to Asheville. At the time of the offer, the manager did not request plaintiff to perform any services on the return trip. Plaintiff requested no compensation for the return trip. Stopping at Georgetown, Kentucky, involved no deviation from the normal route followed from Pontiac to Asheville, and defendant Dowdle would have made the trip at the same time and on the same route regardless of plaintiff\u2019s presence. It was not the policy of Carolina to have two drivers on such a trip or to have relief drivers along the way. At the time of the accident on Sunday, 12 June 1968, plaintiff was not performing any services of benefit to Carolina. The trip to Kentucky by the plaintiff was neither consistent nor connected with Carolina\u2019s business of policy. The court concluded that the plaintiff was a guest passenger and not an employee acting within the course and scope of employment while riding in the vehicle of Carolina on 12 June 1966, that the plaintiff and Carolina were not bound by the Workmen\u2019s Compensation Act at the time of the injury, and that the injuries were not compensable under the Workmen\u2019s Compensation Act. The court overruled Carolina\u2019s plea in bar and ordered the cause set for trial. Carolina excepted to each finding of fact and conclusion of law and appealed.\nGudger & Erwin by Samuel J. Crow for plaintiff appellee.\nTJzzell & DuMont by Harry DuMont for defendant appellant." }, "file_name": "0450-01", "first_page_order": 470, "last_page_order": 473 }