concurring: The record in this proceeding shows that Latta Johnson, the owner and proprietor of the Johnson Funeral Home, at the hearing before Commissioner Dorsett, was asked the following-question: “How many men did you keep on duty all the time at your place of business ?” His reply to this question, as shown by the record, was as follows: “I have employed three men other than myself, and I tried to keep at all times until a reasonably late hour in the evening, two men on duty to take care of the work. Mr. Thompson was on duty the night of 16 August, and I saw him that night.”
This was the only evidence at the hearing tending to show the number of employees of the Johnson Funeral Home at the time the deceased employee was injured. This evidence did not show that the employer had in his employment at the time the deceased employee was injured as many as five employees. For this reason, it was held that the North Carolina Industrial Commission did not have jurisdiction of the parties to this proceeding, and the judgment of the Superior Court approving the award of the Industrial Commission was for this reason reversed.
*181Tbe dependents of tbe deceased employee now ask tbat tbe proceeding be remanded by tbe Superior Court to tbe Industrial Commission, not tbat tbe employer may change bis testimony, but tbat they may sbow tbe fact to be as tbe affidavits of tbe employer and bis wife tend to sbow, tbat be bad six regular employees in bis employment at tbe time tbe deceased employee was injured. Tbe name of eacb of these employees is set forth in tbe affidavits. I think it but just tbat tbe employer, who bad complied with tbe provisions of tbe North Carolina Workmen’s Compensation Act, with respect to insurance for tbe protection of bis employees, shall have an opportunity to explain bis testimony to tbe end tbat the insurance carrier shall not escape tbe liability which it has undertaken by reason of a technicality. I concur in tbe opinion of tbe Court, which is in accord with both tbe letter and tbe spirit of tbe Workmen’s Compensation Act.
Stacy, C. J., dissenting: An employer qualifies as administrator of tbe estate of one of bis employees, brings a proceeding against himself before tbe Industrial Commission to recover of tbe insurance carrier, and loses on bis own testimony, in consequence of which tbe proceeding is dismissed. Dependents of Thompson v. Funeral Home, 205 N. C., 801, 112 S. E., 500. He then seeks another opportunity to make out bis case by changing bis testimony. We said in our former opinion tbat tbe law would not assist him in this undertaking, as witness tbe following:
“Plaintiffs have bad their day in court, and they have failed to make out their case. There was no motion in tbe Superior Court to remand when tbe jurisdiction of tbe Industrial Commission was first challenged. Butts v. Montague Bros., 204 N. C., 389, 168 S. E., 215. Nor is tbe suggestion made here except as a dernier ressort. Ordinarily, parties to a suit are allowed but ‘one bite at tbe cherry.’ Having tried and failed, they are not entitled, as a matter of right, to go back and ‘mend their licks.’ Furthermore, it seems quite improbable tbat tbe plaintiffs would be able to sbow jurisdiction, even if given another chance, unless tbe employer, who appears to have qualified as administrator of tbe employee’s estate and is now appealing from tbe judgment, should change bis testimony. There comes a time when litigation should end.”
This was said just a year ago. Tbe Court now reverses its decision in order tbat tbe witness may change bis testimony. It requires no gift of clairvoyance to perceive in advance tbe ultimate effect of such a volte face. There is no question of newly discovered evidence as in tbe case of Butts v. Montague Bros., post, 186; nor of an inadvertence or omission in tbe former record, as in Roebuck v. Trustees, 184 N. C., 611, 113 S. E., 927. It is a plain case of reversal on our part in derogation *182of “tbe law of tbe case” and tbe stability of judicial decision, so tbat tbe plaintiff may bave another cbance — a privilege not usually accorded to litigants in this jurisdiction. In Kannan v. Assad, 182 N. C., 77, 108 S. E., 383, a party, wbo bad sworn to bis own hurt, was not permitted thereafter to change bis position. Numerous cases might be cited to tbe same effect. Rand v. Gillette, 199 N. C., 462, 154 S. E., 746.
Bbogden, J., concurs in dissent.