CLARKSON, J., concurring.
STACY, C. J., dissenting.
BROGDEN, J., concurs in dissent. This is a proceeding for compensation under the provisions of the North Carolina Workmen's Compensation Act.
The proceeding was heard in the Supreme Court at Fall Term, 1933, on defendants' appeal from a judgment of the Superior Court of Iredell County, at May Term, 1933, affirming an award of compensation made by the North Carolina Industrial Commission on 20 February, 1933. The judgment was reversed for the reason that it did not appear on the record that there was evidence tending to support the conclusion of Commissioner Dorsett, which was approved by the full Commission, that the parties to the proceeding are subject to the provisions of the North Carolina Workmen's Compensation Act. The evidence in the record *Page 179 showed that at the time the deceased employee was injured, the employer had in his employment less than five employees. For this reason it was held that the North Carolina Industrial Commission was without jurisdiction of the proceeding for compensation under the provisions of the North Carolina Workmen's Compensation Act. See Dependents of Thompson v. Funeral Home,205 N.C. 801, 172 S.E. 500.
When the proceeding was remanded to the Superior Court of Iredell County for judgment in accordance with the opinion of the Supreme Court, and while it was pending in said court, the plaintiffs moved the court to remand the proceedings to the Industrial Commission in order that said Commission may hear evidence and find specifically the number of employees in the employment of the defendant Johnson Funeral Home at the time the deceased employee was injured. This motion was supported by affidavits tending to show that the defendant had in its employment at said date more than five employees.
The motion was allowed, and the defendants appealed to the Supreme Court. The only question presented by this appeal is whether the judge of the Superior Court has the power to remand a proceeding for compensation under the provisions of the North Carolina Workmen's Compensation Act, pending in said court on an appeal from an award made therein by the North Carolina Industrial Commission, after a judgment affirming said award has been reversed on an appeal to the Supreme Court, on the ground that on the record the Industrial Commission was without jurisdiction of the parties to the proceeding, in order that the Industrial Commission may hear evidence and ascertain the facts which determine its jurisdiction.
This question must be answered in the affirmative.
In the instant case, it appears from the record that the defendants did not challenge the jurisdiction of the Industrial Commission at the hearing before Commissioner Dorsett, or at the hearing before the full Commission. Its jurisdiction was challenged first in the Superior Court, where the proceeding was pending on defendants' appeal, on the ground that it appeared from the evidence set out in the record that at the time the deceased employee was injured, the employer had in its employment less than five employees. This challenge was sustained by the Supreme Court on defendants' appeal from the judgment of the Superior Court affirming the award of the Industrial Commission. When the proceeding was remanded to the Superior Court, and before *Page 180 judgment was entered in said court in accordance with the opinion of the Supreme Court, the plaintiffs moved in said court that the proceeding be remanded to the Industrial Commission, in order that the facts with respect to the number of employees in the employment of the defendant at the time the deceased employee was injured might be ascertained by the Industrial Commission. The motion was allowed. In this there was no error. See Byrd v.Lumber Co., 207 N.C. 253, 176 S.E. 572; Ruth v. Carolina Cleaners,Inc., 206 N.C. 540, 174 S.E. 445; Butts v. Montague Bros., post, 186.
The question presented by this appeal was not involved in the former appeal in this proceeding. Nothing said by this Court in the opinion on the former appeal is inconsistent with the disposition of this appeal. We hold only that the judge of the Superior Court had the power to make the order remanding the proceeding to the Industrial Commission for the purpose stated in the order. When the proceeding has been remanded to the Industrial Commission, the Commission will determine, in accordance with its rules, whether it will hear evidence tending to show the number of employees in the employment of the defendant employer at the time the deceased employee was injured, and if it shall hear evidence offered by the plaintiffs, and find the facts to be as contended by the plaintiffs, will have the power to make such findings a part of the record in this proceeding. These findings of fact being jurisdictional, will be subject to review by the Superior Court. Aycock v. Cooper, 202 N.C. 500,163 S.E. 569.
Affirmed.