ClabKSON, J.
The defendants excepted and assigned as error: “That the Court erred in its findings of fact and conclusions of law in signing the judgment, as appears of record.” We cannot so hold.
The other exceptions and assignments of error, as to the incompetency of evidence, cannot be sustained. If error, it was not prejudicial. There was sufficient competent evidence to sustain the finding of the Industrial Commission and the conclusions of law we think are correct.
In Buchanan v. Highway Com., 217 N. C., 173 (174-5), Devin, J., for the Court, says: “Under the North Carolina Workmen’s Compensation Act, dealing with the matter of compensation for injuries due to the hazards of industry, both the duty and the exclusive authority to find the facts relative to controverted claims are vested in the Industrial Commission, and it is provided by section 60 of the Act that upon review the award of the Commission shall be conclusive and binding as to all questions of fact. In accord with this statutory provision it has been uniformly held by this Court that, when supported by competent evidence, the findings of fact by the Industrial Commission are conclusive on appeal, and are not subject to review by the Superior Court or the Supreme Court. . . . (citing authorities). The only exception to this rule is where the jurisdiction of the Industrial Commission is challenged. . . . (citing authorities). The powers of the Superior Court with reference to appeals from the Industrial Commission are pointed out in Tindall v. Furniture Co., 216 N. C., 306” (citing authorities).
Section 36 of the Workmen’s Compensation Act (Consolidated Statutes, 8081 [rr]), provides: “Where an accident happens while the employee is employed elsewhere than in this State, which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, (a) if the contract of employment was made in this State, (b) if the employer’s place of business is in this State, and (c) if the residence of the employee is in this State; provided his contract of employment was not expressly for service exclusively outside of the State.” (Letters inserted — italics ours.)
As is admitted in the second paragraph on page 2 of appellants’ brief, the three conditions set forth in Section 36 above quoted are met by [543]*543claimant in this ease: (a) the contract of employment was made in North Carolina; (b) the employer’s place of business is in North Carolina; and (e) the residence of the employee was in North Carolina.
In Reaves v. Mill Co., 216 N. C., 462 (465), this Court stated: “In so far as it depends upon the statute alone, the jurisdiction of the Industrial Commission attaches only (a) if the contract of employment was made in this State; (b) if the employer’s place of business is in this State; and (c) if the residence of the employee is in this State. All these circumstances must combine to give the jurisdiction.” Brooks v. Carolina Rim & Wheel Co., 213 N. C., 518.
In 71 Corpus Juris, sec. 724, in part, at p. 960, it is said: “Where the Act extends the jurisdiction of the Commission to injuries suffered outside the State under a contract of employment made in the State, unless the contract otherwise provides, the Commission has jurisdiction of an injury incurred outside the State where the contract of employment was made in the State and it appears that there was acceptance of the terms of the Act by the parties.”
The finding of the Industrial Commission that from the competent evidence the plaintiff was entitled to recover, bring up, we think, the only serious question.
The proviso to the Act is: “Provided his contract of employment was not expressly for service exclusively outside of the State.” The burden is oil the defendants to bring themselves within the proviso.
In S. v. Davis, 214 N. C., 787 (793), it is written: “It has long been settled in this State that although the burden of establishing the corpus delicti is upon the State, when defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, the onus of proof as to such matter is upon the defendant. S. v. Arnold, 35 N. C., 184; S. v. McNair, 93 N. C., 628; S. v. Buchanan, 130 N. C., 660; S. v. Smith, 157 N. C., 578. In discussing this phase of the law in S. v. Connor, 142 N. C., 700, Hoke, J., says: 'It is well established that when a statute creates a substantive criminal offense, the description of the same being complete and definite, and by a subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution. . . . In such circumstances, a defendant charged with the crime who seeks protection by reason of the exception, has the burden of proving that he comes within the same. S. v. Heaton, 81 N. C., 543; S. v. Goulden, 134 N. C., 743,’ ” citing many authorities. S. v. Carpenter, 215 N. C., 635 (639).
[544]*544In. Haywood v. Ins. Co., 218 N. C., 736, we find: “Tbe defendant’s denial placed tbe burden on tbe plaintiff to prove bis case by tbe greater weight of tbe evidence, and it was error for tbe trial judge to direct a verdict in favor of tbe plaintiff without leaving it to tbe jury to determine tbe credibility of tbe testimony. McIntosh, Practice & Procedure, 632. ‘A familiar principle of practice forbids a directed instruction in favor of tbe party upon whom rests tbe burden of proof,’ ” citing many authorities.
In Jones v. Waldroup, 217 N. C., 178 (189), it is said: “But tbe burden is upon one who asserts an affirmative plea to establish it by appropriate proof. Benner v. Phipps, supra (214 N. C., 14) ; Everett v. Mortgage Co., supra (214 N. C., 778); Mitchell v. Whitlock, 121 N. C., 166, 28 S. E., 292; Mayo v. Jones, 78 N. C., 402.”
Tbe determination of tbe question of fact, whether “bis contract of employment was not expressly for service exclusively outside of tbe State,” was for tbe Industrial Commission — the fact-finding body.
Plaintiff’s deceased, E. L. Mallard, was an employee of defendant, F. M. Bohannon, Inc. Its place of business was in North Carolina. E. L. Mallard and bis wife bad their domicile in North Carolina, and tbe contract of employment, which was oral, was made in North Carolina. E. M. Bohannon, Inc., bad accepted tbe provisions of tbe Compensation Act and tbe Maryland Casualty Company was tbe carrier. Mallard met bis death on 26 September, 1940, as tbe result of an accident arising out of and in tbe course of bis employment. This made out a prima facie case. It was for tbe Industrial Commission to determine whether tbe defendants’ evidence rebutted tbe prima facie case.
T. R. Thornton, then assistant sales manager, now sales manager of F. M. Bohannon, Inc., employed Mallard. He was a witness for defendants and testified: “Q. Mr. Thornton, tbe territory assigned to him (Mallard) was South Georgia and parts of North Florida? Ans.: Yes, sir. Q.
Free access — add to your briefcase to read the full text and ask questions with AI
ClabKSON, J.
The defendants excepted and assigned as error: “That the Court erred in its findings of fact and conclusions of law in signing the judgment, as appears of record.” We cannot so hold.
The other exceptions and assignments of error, as to the incompetency of evidence, cannot be sustained. If error, it was not prejudicial. There was sufficient competent evidence to sustain the finding of the Industrial Commission and the conclusions of law we think are correct.
In Buchanan v. Highway Com., 217 N. C., 173 (174-5), Devin, J., for the Court, says: “Under the North Carolina Workmen’s Compensation Act, dealing with the matter of compensation for injuries due to the hazards of industry, both the duty and the exclusive authority to find the facts relative to controverted claims are vested in the Industrial Commission, and it is provided by section 60 of the Act that upon review the award of the Commission shall be conclusive and binding as to all questions of fact. In accord with this statutory provision it has been uniformly held by this Court that, when supported by competent evidence, the findings of fact by the Industrial Commission are conclusive on appeal, and are not subject to review by the Superior Court or the Supreme Court. . . . (citing authorities). The only exception to this rule is where the jurisdiction of the Industrial Commission is challenged. . . . (citing authorities). The powers of the Superior Court with reference to appeals from the Industrial Commission are pointed out in Tindall v. Furniture Co., 216 N. C., 306” (citing authorities).
Section 36 of the Workmen’s Compensation Act (Consolidated Statutes, 8081 [rr]), provides: “Where an accident happens while the employee is employed elsewhere than in this State, which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, (a) if the contract of employment was made in this State, (b) if the employer’s place of business is in this State, and (c) if the residence of the employee is in this State; provided his contract of employment was not expressly for service exclusively outside of the State.” (Letters inserted — italics ours.)
As is admitted in the second paragraph on page 2 of appellants’ brief, the three conditions set forth in Section 36 above quoted are met by [543]*543claimant in this ease: (a) the contract of employment was made in North Carolina; (b) the employer’s place of business is in North Carolina; and (e) the residence of the employee was in North Carolina.
In Reaves v. Mill Co., 216 N. C., 462 (465), this Court stated: “In so far as it depends upon the statute alone, the jurisdiction of the Industrial Commission attaches only (a) if the contract of employment was made in this State; (b) if the employer’s place of business is in this State; and (c) if the residence of the employee is in this State. All these circumstances must combine to give the jurisdiction.” Brooks v. Carolina Rim & Wheel Co., 213 N. C., 518.
In 71 Corpus Juris, sec. 724, in part, at p. 960, it is said: “Where the Act extends the jurisdiction of the Commission to injuries suffered outside the State under a contract of employment made in the State, unless the contract otherwise provides, the Commission has jurisdiction of an injury incurred outside the State where the contract of employment was made in the State and it appears that there was acceptance of the terms of the Act by the parties.”
The finding of the Industrial Commission that from the competent evidence the plaintiff was entitled to recover, bring up, we think, the only serious question.
The proviso to the Act is: “Provided his contract of employment was not expressly for service exclusively outside of the State.” The burden is oil the defendants to bring themselves within the proviso.
In S. v. Davis, 214 N. C., 787 (793), it is written: “It has long been settled in this State that although the burden of establishing the corpus delicti is upon the State, when defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, the onus of proof as to such matter is upon the defendant. S. v. Arnold, 35 N. C., 184; S. v. McNair, 93 N. C., 628; S. v. Buchanan, 130 N. C., 660; S. v. Smith, 157 N. C., 578. In discussing this phase of the law in S. v. Connor, 142 N. C., 700, Hoke, J., says: 'It is well established that when a statute creates a substantive criminal offense, the description of the same being complete and definite, and by a subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution. . . . In such circumstances, a defendant charged with the crime who seeks protection by reason of the exception, has the burden of proving that he comes within the same. S. v. Heaton, 81 N. C., 543; S. v. Goulden, 134 N. C., 743,’ ” citing many authorities. S. v. Carpenter, 215 N. C., 635 (639).
[544]*544In. Haywood v. Ins. Co., 218 N. C., 736, we find: “Tbe defendant’s denial placed tbe burden on tbe plaintiff to prove bis case by tbe greater weight of tbe evidence, and it was error for tbe trial judge to direct a verdict in favor of tbe plaintiff without leaving it to tbe jury to determine tbe credibility of tbe testimony. McIntosh, Practice & Procedure, 632. ‘A familiar principle of practice forbids a directed instruction in favor of tbe party upon whom rests tbe burden of proof,’ ” citing many authorities.
In Jones v. Waldroup, 217 N. C., 178 (189), it is said: “But tbe burden is upon one who asserts an affirmative plea to establish it by appropriate proof. Benner v. Phipps, supra (214 N. C., 14) ; Everett v. Mortgage Co., supra (214 N. C., 778); Mitchell v. Whitlock, 121 N. C., 166, 28 S. E., 292; Mayo v. Jones, 78 N. C., 402.”
Tbe determination of tbe question of fact, whether “bis contract of employment was not expressly for service exclusively outside of tbe State,” was for tbe Industrial Commission — the fact-finding body.
Plaintiff’s deceased, E. L. Mallard, was an employee of defendant, F. M. Bohannon, Inc. Its place of business was in North Carolina. E. L. Mallard and bis wife bad their domicile in North Carolina, and tbe contract of employment, which was oral, was made in North Carolina. E. M. Bohannon, Inc., bad accepted tbe provisions of tbe Compensation Act and tbe Maryland Casualty Company was tbe carrier. Mallard met bis death on 26 September, 1940, as tbe result of an accident arising out of and in tbe course of bis employment. This made out a prima facie case. It was for tbe Industrial Commission to determine whether tbe defendants’ evidence rebutted tbe prima facie case.
T. R. Thornton, then assistant sales manager, now sales manager of F. M. Bohannon, Inc., employed Mallard. He was a witness for defendants and testified: “Q. Mr. Thornton, tbe territory assigned to him (Mallard) was South Georgia and parts of North Florida? Ans.: Yes, sir. Q. He was subject to change of territory at any time tbe company decided it was to tbe company’s best interest to change him, wasn’t be? Ans.: Yes, sir. . . . Q. And be was subject to change of territory at any time that tbe F. M. Bohannon Company, Inc., or you as Mr. Mallard’s superior officer, decided it was to tbe best interest of tbe company to change bis territory? Ans.: Yes, sir. ... I am Sales Manager for everything we have. I travel all tbe states we work.” Thornton could have placed Mallard in North Carolina. F. M. Bohannon, Inc., bad employees in North Carolina whose duties were similar to those of Mallard. Thornton testified further: “Q. You’d have tbe right to tell Mr. Mallard you wanted him to go to North Carolina or Virginia, subject to tbe home office’s approval? Ans.: With tbe permission of tbe home office, yes, sir.”
[545]*545The inference is permissible that the borne office would do wbat Thornton recommended, as he had employed Mallard and was high in authority. We think all this • evidence competent on the question involved in the proviso. The Commission had sufficient competent evidence to find the facts, this is not our province to weigh and determine the facts. There are different statutes in different states and the decisions, on that account, can be of little help. In order to avoid liability, under the facts of this ease, the insurance carrier would have had to prove that Mallard’s' contract of employment was expressly for services exclusively outside the State. The evidence is sufficient to support a contrary conclusion. It is shown by the evidence that under the contract of employment, the employer could have moved plaintiff’s deceased, E. L. Mallard, at any time to any place in Thornton’s territory, which territory embraced the State of North Carolina.
The arguments and briefs of the litigants were able and thorough, and covered every aspect of the case; but on the record we think the judgment of the court below should be
Affirmed.