holding that where the defendant presented substantial evidence of an unforeseeable brake failure, he was entitled to a jury instruction regarding the sudden emergency doctrine
How later courts described this case
- holding that where the defendant presented substantial evidence of an unforeseeable brake failure, he was entitled to a jury instruction regarding the sudden emergency doctrine
Written by the judges who cited it.
The opinion
Moore, J.,
concurring: An agreement for the payment of workmen’s compensation, setting out jurisdictional facts and that the employee was injured by accident arising out of and in the course of his employment, when approved by the Industrial Commission is as binding on the parties as an order, decision or award of the Commission unap-pealed from, or an award of the Commission affirmed on appeal. Smith v. Red Cross, 245 N.C. 116 , 95 S.E. 2d 559. Such agreement may be set aside for fraud, misrepresentation or mutual mistake at the instance of a party or parties thereto. Neal v. Clary, 259 N.C. 163 , 130 S.E. 2d 39 .
I concur with the holding of the majority opinion that such agreement may not be set aside by the Commission upon the ex parte factual stipulations of the parties which have the effect of withdrawing the question of compensation from the jurisdiction of the Commission, though such stipulations tend to show a mutual mistake of fact. Jurisdiction may *249 not be turned on and off at the whim or for the convenience of the parties. “In determining the question of jurisdiction, considerations of hardship,, or the merits of the case, can play no part, nor is the concurrence of the litigants or witnesses controlling.” 21 C.J.S., Courts, s. 112, pp. 170, 171. “When at any time or in any manner it is represented to the court that it has not jurisdiction, the court should examine the grounds of its jurisdiction before proceeding further, the question of jurisdiction being always open for determination. The court may receive testimony on a preliminary question to determine its jurisdiction and is not bound to dismiss the suit on a mere allegation of lack of jurisdiction, but may inquire into the correctness of the averment.” 21 C.J.S., Courts, s. 113, p. 175. There can be no waiver of jurisdiction Miller v. Roberts, 212 N.C. 126 , 193 S.E. 286 . An order of the Commission relinquishing jurisdiction, theretofore asserted, should be made only after a plenary hearing instituted, if it need be, by the Commission itself. Such hearing was not had in this case. The majority opinion correctly reversed the court below on the question of nonsuit.
However, in my opinion we should not leave the impression that a full hearing and determination of the question of jurisdiction by the Commission would bind the defendant in the present action — the fellow employee. The sole issue before the Industrial Commission fa whether Stanley, plaintiff herein, is entitled to compensation under the Workmen’s Compensation Act. Defendant herein, the fellow employee, is neither a nacessáry nor proper party to the proceeding. He may be a necessary or important witness before the Commission, but the Commission cannot make him a party to the proceeding before that tribunal. Its orders and awards will be binding only upon the claimant-employee, the employer and insurance carrier.
Miller v. Roberts, supra, was an action in Superior Court for wrongful death. Miller and Townsend, a fellow employee, were employed by Roberts. Miller was fatally injured while riding in a motor vehicle operated by Townsend. Both were about the business of Roberts at the time of the injury. The immediate cause of the injury was the negligence of Townsend in the operation of the motor vehicle. Miller’s administra-trix instituted an action in Superior Court for the wrongful death of Miller, alleging actionable negligence on the part of Townsend and the liability of Roberts under the doctrine of respondeat superior. Defendants did not plead the Workmen’s Compensation Act in bar, but there was uncontradicted evidence that Roberts had, at the time of the accident, 25 employees in the business establishment at which Miller and Townsend worked. The trial court nonsuited the action for want of jurisdiction in the Superior Court. On appeal, this Court affirmed, holding *250 that “The Superior Court has the duty and power to find a jurisdictional fact.”
“Every court has judicial power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.” 21 C.J.S., Courts, § 113, p. 174. It is the first duty of a court to determine its own jurisdiction. Patrick v. Baker, 180 N.C. 588 , 105 S.E. 271 .
In my opinion the Industrial Commission is without authority to bind defendant Brown as to its jurisdiction. If the Industrial Commission, after a full hearing should determine that the agreement for compensation for Stanley was executed by reason of mutual mistake, that Stanley was not injured in the course of his employment, and that Stanley had been diligent in moving to vacate the agreement, Brown would still be entitled to raise and have determined in Superior Court the question of jurisdiction in an action in Superior Court to fix him with liability for Brown’s injury.
PARKER, J., joins in the concurring opinion.