{
  "id": 8559609,
  "name": "MARY W. NEAL v. LAWRENCE ROCHELLE CLARY, SR.",
  "name_abbreviation": "Neal v. Clary",
  "decision_date": "1963-03-27",
  "docket_number": "",
  "first_page": "163",
  "last_page": "167",
  "citations": [
    {
      "type": "official",
      "cite": "259 N.C. 163"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "51 S.E. 2d 185",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "229 N.C. 732",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        12167856
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/229/0732-01"
      ]
    },
    {
      "cite": "95 S.E. 2d 559",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "245 N.C. 116",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8606005
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/245/0116-01"
      ]
    },
    {
      "cite": "63 S.E. 2d 109",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "233 N.C. 185",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8601196
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/233/0185-01"
      ]
    },
    {
      "cite": "199 S.E. 623",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "214 N.C. 449",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8631250
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/214/0449-01"
      ]
    },
    {
      "cite": "87 S.E. 2d 510",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "242 N.C. 290",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8613806
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/242/0290-01"
      ]
    },
    {
      "cite": "129 S.E. 2d 589",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "259 N.C. 38",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559143
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/259/0038-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 405,
    "char_count": 8603,
    "ocr_confidence": 0.539,
    "pagerank": {
      "raw": 3.467626883630801e-07,
      "percentile": 0.8810556136670517
    },
    "sha256": "4cf7def9c58eb24929abfaff8111a03cd8f1abe63197507bb9f0f6c3585dd6f4",
    "simhash": "1:1479e53bba2a4eb6",
    "word_count": 1388
  },
  "last_updated": "2023-07-14T17:55:17.750134+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "MARY W. NEAL v. LAWRENCE ROCHELLE CLARY, SR."
    ],
    "opinions": [
      {
        "text": "Denny, C.J.\nThe only assignment of error is -to the ruling of the court below in dismissing the action for want of jurisdiction.\nOrdinarily, when the pleadings in a common law tort action disclose that the parties are subject to and bound by the provisions of the North Carolina Workmen\u2019s Compensation Act with respect to the injury involved, dismissal is proper for the Industrial Commission has exclusive jurisdiction in such cases.\nIn the instant case, at the time of the hearing below, not only the pleadings tended to show that the employer-employee relationship existed with respect to plaintiff\u2019s injury, but the evidence tended to show that all parties, including the defendant, were subject to and bound by the North Carolina Workmen\u2019s Compensation Act and that plaintiff employee\u2019s injury arose out of and in the course of her employment with the Harden Manufacturing Company.\nIn light of the pleadings and the evidence adduced in the trial below, we think his Honor properly dismissed this -action for want of jurisdiction. Cox v. Transportation Co., 259 N.C. 38, 129 S.E. 2d 589; Powers v. Memorial Hospital, 242 N.C. 290, 87 S.E. 2d 510; Tscheiller v. Weaving Co., 214 N.C. 449, 199 S.E. 623.\nWhen this appeal was argued in this Court, the plaintiff, through her counsel, moved to amend her pleadings to allege \u201cThat it is admitted that a form signed by the plaintiff was filed with the North Carolina Industrial Commission, said form purporting to be for benefits under the Workmen\u2019s Compensation Act; however, plaintiff expressly denies that the paper writing was signed for such purpose and further alleges that her signature on said paper writing was obtained by mutual mistake, misrepresentation, and fraudulent statements on the part of the person obtaining said signature; further that a contested hearing was held before Gene C. Smith Deputy Commissioner of the North Carolina Industrial Commission, on October 31, 1962, in Gas-tonia, North Carolina, wherein both plaintiff and employer were represented by attorneys and presented evidence, that by the opinion and award of Gene C. Smith, Deputy Commissioner of the North Carolina Industrial Commission, filed November 27, 1962, in said matter, from which no appeal has been taken, the Commission\u2019s approval of Industrial Commission Form No. 21 Agreement dated February 13, 1961, between the plaintiff, the defendant employer (Harden Manufacturing Company) and Lumbermens Mutual Casualty Company, approved by the Commission on March 7, 1961, was set aside; said opinion reciting in the conclusion of law of the Commissioner, that the accident did not arise out of and in the course of the plaintiff\u2019s employment, nor did the employer-employee relationship exist at the time of the accident, and therefore, the Industrial Commission has no jurisdiction over the claim.\u201d\nA certified copy of the opinion and award of the Deputy Commissioner, filed 27 November 1962, was attached to plaintiff\u2019s motion to amend her pleadings, and the award reads as follows: \u201cThe motion of tire plaintiff that the award of the North Carolina Industrial Commission, evidenced by the Commission\u2019s approval of Industrial Commission Form 21 agreement, dated February 13, 1961, between the plaintiff, the defendant employer .and Lumbermens Mutual Casualty Company, approved by the Commission on March 7, 1961, is hereby granted, and said award is -hereby set aside.\u201d\nWe do not construe the award filed by the Deputy Commissioner on 27 November 1962, to set aside the agreement of the parties contained in Form No. 21, filed with the Industrial Commission on 13 February 1961 and approved by the Commission on 7 March 1961, on the grounds -of mutual mistake, fraud or otherwise, or to expressly withdraw the approval of the Commission thereto, but merely purports to -set aside the -award theretofore entered. \u201cAn agreement for the payment of -compensation when approved by the Commission is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed on appeal. G.S. 97-84.\u201d Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E. 2d 109; Smith v. Red Cross, 245 N.C. 116, 95 S.E. 2d 559.\nThe motion to amend filed in this Court is denied without prejudice to move before the Industrial Commission, after notice to all interested parties, to set aside the agreement contained in Form No. 21, dated 13 February 1961, as well as the award made pursuant thereto, on the grounds of mutual mistake, misrepresentation and fraudulent statements. Nance v. Winston-Salem, 229 N.C. 732, 51 S.E. 2d 185. If such agreement is set aside by the Industrial Commission on the aforesaid grounds, the plaintiff may, if so advised, institute a new action and allege the facts with respect to jurisdiction as they may then exist.\nIt will be noted that no ruling adverse to the plaintiff was made in the court below on the merits of plaintiff\u2019s cause of action, but only as to jurisdiction.\nAffirmed-.",
        "type": "majority",
        "author": "Denny, C.J."
      }
    ],
    "attorneys": [
      "Henry M. Whitesides for 'plaintiff appellant.",
      "Carpenter, Wehb \u2022& Golding, John A. Mraz for defendant appellee.."
    ],
    "corrections": "",
    "head_matter": "MARY W. NEAL v. LAWRENCE ROCHELLE CLARY, SR.\n(Filed 27 March 1963.)\n1. Master and Servant \u00a7 84\u2014\nWhere the findings show that the employer-employee relationship existed with respect -to plain-tiff\u2019s injury and the evidence discloses tha-t both plaintiff and defendant were eo-employees and the injury arose out of and in the course of plaintiff\u2019s employment, action at common law instituted by plaintiff is properly dismissed for want of jurisdiction.\n3. Same; Master and Servant \u00a7 07\u2014\nAn agreement for the payment of compensation is binding on the parties when approved by the Industrial Commission, G-.S. 97-84, and therefore where such agreement has been signed and approved by the Commission and an award entered thereon, and the Commission has entered an order setting aside the award alone without disturbing the Commission\u2019s approval or the agreement of the parties, such agreement precludes action at common law.\nAppeal by plaintiff from Riddle, Special Judge, August Civil Term 1962 o\u00ed-Gaston.\nThis is a civil action in which the plaintiff seeks to recover damages for personal injuries sustained by her while riding in an automobile which was involved in a collision at the intersection of Highway 150 and Salem Church Road in Gaston County on Saturday, 4 February 1961, at approximately 6:30 a.m. The defendant was driving the car in which plaintiff was riding and is alleged to have driven the same negligently. No controversy arises with respect to negligence on this appeal.\nIn the answer to the complaint, the defendant alleged and the plaintiff admitted in her reply that at the time of the collision referred to in the complaint, the plaintiff and defendant were employees of Harden Manufacturing Company of Gaston County, North Carolina, and that at such time the Harden Manufacturing Company had more than five employees regularly employed by it. The defendant further alleged that at the time of the collision both the plaintiff and defendant were in the course of their employment with the Harden Manufacturing Company; that the plaintiff was riding in defendant\u2019s vehicle by reason of their relationship with their employer; that the injuries sustained by plaintiff arose out of her employment; and that the plaintiff and the defendant and their employer at the time of the collision were subject to and bound by the provisions of the North Carolina Workmen\u2019s Compensation Act.\nUpon the foregoing, the defendant specifically pleaded the Workmen\u2019s Compensation Act in bar of this action, and further pleaded that plaintiff had filed a claim for benefits under the Act with the North Carolina Industrial Commission and had entered into an agreement for compensation and medical expenses and that these items had been paid.\nIn the course of the trial the plaintiff admitted signing an \u201cAgreement for Compensation for Disability,\u201d being North Carolina Industrial Commission Form No. 21, which form was also signed by her employer, its workmen\u2019s compensation carrier, and which agreement was approved on 7 March 1961 by the North Carolina Industrial Commission.\nPlaintiff\u2019s remaining evidence adduced in the trial below is omitted since we do not deem it essential to a proper disposition of the appeal.\nAt the close of plaintiff\u2019s evidence the defendant moved for judgment as of nonsuit and also moved the court to dismiss the action for lack of jurisdiction in the Superior Court. The court allowed the motion to dismiss for lack of jurisdiction.\nThe plaintiff appeals, -assigning error.\nHenry M. Whitesides for 'plaintiff appellant.\nCarpenter, Wehb \u2022& Golding, John A. Mraz for defendant appellee.."
  },
  "file_name": "0163-01",
  "first_page_order": 207,
  "last_page_order": 211
}