Mabel Gertrude POWERS
v.
ROBESON COUNTY MEMORIAL HOSPITAL, Inc., and Bernle H. Smith.
No. 669.
Supreme Court of North Carolina.
May 25, 1955.*512 Hackett & Weinstein, Varser, McIntyre & Henry, Lumberton, for plaintiff appellant.
E. J. Britt, McLean & Stacy, Lumberton, Carpenter & Webb, Charlotte, for defendant Hospital, Inc., appellee.
I. Murchison Biggs, Lumberton, for defendant Smith, appellee.
WINBORNE, Justice.
This appeal challenges, in the main, the correctness of the rulings of the trial court in allowing motions of defendants, respectively, for judgment as of nonsuit.
I. As to the ruling on motion of defendant Hospital, Inc.:
At the outset let it be noted that the admissions made by plaintiff in her pleading are sufficient to bring plaintiff's employment by defendant Hospital, Inc., within the provisions of the North Carolina Workmen's Compensation Act, save and except as to the matter of the number of the employees regularly employed by defendant Hospital, Inc., in the operation of its hospital. G.S. § 97-2(a).
Such admissions are judicial in character, and binding on plaintiff. In Stansbury's North Carolina Evidence, at p. 352, the author states that a judicial admission is "a formal concession made by a party (usually through counsel) in the course of litigation, either in a pleading or by way of stipulation before or at the trial, for the purpose of withdrawing a particular fact from the realm of dispute. Such an admission is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence. It is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent from the necessity of producing evidence to establish the admitted fact. In short, the subject matter of a judicial admission ceases to be an issue in the case * * *." See also Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16, and cases cited.
Moreover, the case on appeal shows that upon trial in Superior Court the uncontradicted evidence is that defendant Hospital, Inc., had not only as many as five, but had many more than five employees regularly employed by it in the operation of its hospital. If the evidence be true, all of the essential elements necessary to bring the employment of plaintiff by defendant Hospital, Inc. within the provisions of the North Carolina Workmen's Compensation Act, and under the jurisdiction of the North Carolina Industrial Commission, are present. See McNair v. Ward, 240 N.C. 330, 82 S.E.2d 85, and cases cited.
Whether the hospital had the required number of employees is a jurisdictional fact to be found by the court. See Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569; Aylor v. Barnes, ante, and cases cited. But in the absence of a request for such finding, it will be assumed that, in allowing the motion for judgment as of nonsuit on the ground stated, the court found the essential facts.
Therefore, error is not made to appear in the ruling allowing judgment as of nonsuit as to defendant Hospital, Inc.
II. Now, as to ruling on motion of defendant Smith:
Taking the evidence offered upon the trial in Superior Court in the light most favorable to plaintiff, giving to her the benefit of every reasonable inference, as must be done in considering a demurrer to the evidence pursuant to provisions of G.S. § 1-183, this Court is of opinion and holds that as the issues relate to defendant Smith, a case is made for the jury. Hence, as there must be a new trial as to him, the Court refrains from recital of the evidence in detail.
III. The assignments of error based upon exceptions to matters of evidence do not materially affect the decision here reached.
As to defendant Hospital, Inc.Affirmed.
As to defendant SmithNew trial.