#### J. FRED THOMPSON, Employee, and F. C. THOMPSON, OCTAVIA THOMPSON, and LUCY THOMPSON, Father, Mother, and Sister, Respectively, and Next of Kin of J. FRED THOMPSON, Deceased, v. JOHNSON FUNERAL HOME, Employer, and SUN INDEMNITY COMPANY, Insurance Carrier.

(Filed 1 May, 1935.)

*1.*Appeal and Error L a: Master and Servant E j — Superior Court may remand to Industrial Commission cause remanded by Supreme Court for judgment dismissing the proceeding for want of jurisdiction.

Upon appeal to the Superior Court from- an award of the Industrial Commission the question of jurisdiction of the Industrial Commission was raised for the first time. Defendants’ challenge to the jurisdiction was not sustained and judgment was entered affirming the award of the Industrial Commission. Upon appeal to the Supreme Court the judgment was reversed and the cause remanded to the Superior Court for that the evidence of record showed that at the time of the injury in suit the employer regularly employed less than five employees, and that therefore the Industrial Commission was without jurisdiction. Before judgment was entered in the Superior Court upon the judgment of the Supreme Court, the Superior Court, upon motion supported by affidavits, remanded the cause to the Industrial Commission in order that it could hear evidence and ascertain the disputed jurisdictional fact. *Held-:*The Superior Court had the power to so remand the cause.

2. Master and Servant F i—

A finding of the Industrial Commission in regard to the number of employees regularly employed by defendant employer, being jurisdictional, is subject to review upon appeal.

Clarkson, J., concurring.

Stacy, C. J., dissenting.

Brogden, J., concurs in dissent.

Appeal by defendants from *Siaclc,*Jat November Term, 1934, of Ibedell.

Affirmed.

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 *179showed 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. 0., 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.

*Z. V. Turlington and Jach Joyner for plaintiffs.*

*Cochran & McClenaghan for defendants.*

CoNNOR, J..

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 *180judgment 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.

ClaRKSON, J.,

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.