DONALD LUTHER BURGESS, by his Next Friend THEODORE BURGESS v. HUGH GIBBS, 262 N.C. 462

PaeKer, J. Among other defenses, the answer of the defendant alleges as a plea in bar to plaintiff’s action his immunity to suit at common law by plaintiff in this case and his nonliability under the provisions of G.S. 97-9 and G.S. 97-10.1 of the N. C. Workmen’s Compensation Act. A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity. High v. Pearce, 220 N.C. 266, 17 S.E. 2d 108. If a court finds at any stage of the proceedings it is without jurisdiction, it is its duty to take notice of the defect and stay, quash or dismiss the suit.

In re Davis, 248 N.C. 428, 103 S.E. 2d 503. “This is necessary, to prevent the court from being forced into

an act of usurpation, and compelled to give a void judgment. * * * So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero mota, where the defect of jurisdiction is apparent, stop the proceeding.” Branch v. Houston, 44 N.C. 85.

When the trial judge in the absence of the jury heard and decided all questions relating to the court’s jurisdiction to entertain the instant action, he followed the sound rule that every court necessarily has inherent judicial power to inquire into, hear and determine the questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction. Jones v. Oil Co., 202 N.C. 328, 162 S.E. 741; Miller v. Roberts, 212 N.C. 126, 193 S.E. 286; Dellinger v. Clark, 234 N.C. 419, 67 S.E. 2d 448; Gilbert v. David, 235 U.S. 561, 59 L. ed. 360; Prack v.

Weissinger, 276 F. 2d 446; Murphy v. Campbell Soup Co., 40 F. 2d 671; Gill v. Sovereign Camp, W.O.W., 209 Mo. App. 63, 236 S.W. 1073; Dolese Bros. v. Tollett, 162 Okl. 158, 19 P. 2d 570; Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E. 2d 18; Brenner v. Great Cove Realty Co., 190 N.Y.S. 2d 337; 21 C. J. S., Courts, § 113, p. 174. In Bridges v. Wyandotte Worsted Co., supra, the Court said: “The issue of jurisdiction is basically one of law. It involves the determination by the court of its right to proceed with the litigation.

A decision of this question by the court deprives a litigant of no right to a jury trial of the issue of liability because, if the court has no jurisdiction, the litigants have no rights which they may assert in that court. The right to have a jury pass upon the controverted factual issues must of necessity relate to the assertion of the right of the litigant which has been allegedly violated, which presupposes a court having jurisdiction to grant the relief sought.

The determination of the jurisdictional question by the court is not a denial of any constitutional right of a litigant to a jury trial, but simply a determination of the forum in which those rights may properly be asserted. The decision of the question of whether the court has jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.” Young v. Mica Co., 212 N.C. 243, 193 S.E. 285, was an action to recover damages for an alleged wrongful death.

Defendant averred a plea in bar on the ground that the Industrial Commission had exclusive jurisdiction by virtue of the N. C. Workmen’s Compensation Act. On the question of jurisdiction there was conflicting evidence. This Court said: “On this conflicting evidence it was proper for the fact to be determined by submission of an issue to the jury.” However, the Court does not say this was necessary. In Gilbert v. David, supra, the district court, after hearing testimony from both parties on the question of plaintiff’s residence, dismissed the suit on the sole ground of want of jurisdiction.

It was contended that the court erred in not submitting the issue of jurisdiction to the jury. The United States Supreme Court said: “But while the court might have submitted the question to the jury, it was not bound to do so; the parties having adduced their testimony, pro and con, it was the privilege of the court, if it saw fit, to dispose of the issue upon the testimony which was fully heard upon that subject.” Jurisdictional questions arising upon motions to quash the service of process on supposed agents of foreign corporations have repeatedly been held by us to present questions for the court. Israel v.

R. R., 262 N.C. 83, 136 S.E. 2d 248; Farmer v. Ferris, 260 N.C. 619, 133 S.E. 2d 492; Dumas v. R. R., 253 N.C. 501, 117 S.E. 2d 426; Brown v. Coal Co., 208 N.C. 50, 178 S.E. 858; Lumber Co. v. Finance Co., 204 N.C. 285, 168 S.E. 219. Plaintiff’s assignments of error to the court’s findings of fact are overruled, because an examination of the evidence in the record before us shows that all challenged findings of fact are supported by competent evidence. Consequently, the challenged findings of fact are binding and conclusive upon us, notwithstanding if there be evidence contra. Farmer v.

Ferris, supra; Lumber Co. v. Finance Co., supra; Brown v. Coal Co., supra; Strong’s N. C. Index, Vol. 1, Appeal and Error, pp. 138-9. Plaintiff’s assignments of error to the court’s conclusions of law and 'to the judgment are overruled.

G.S. 97-2(2) of our Workmen’s Compensation Act defines the term “employee,” so far as relevant here, thus: “The term 'employee’ means every person engaged in an employment under any appointment or ■ contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed * * The judge’s findings of fact show that plaintiff and defendant were both employees of McGuinn, that McGuinn and his employees were subject to and bound by the provisions of the N. C.

Workmen’s Compensation Act, and McGuinn furnished transportation to plaintiff to his home after his hours of employment as a real incident to his contract of employment, and consequently plaintiff was in the course of his employment when injured, because he had a right to the transportation. Jackson v. Bobbitt, 253 N.C. 670, 117 S.E. 2d 806; Lassiter v. Telephone Co., 215 N.C. 227, 1 S.E. 2d 542.

The facts found by the judge show that plaintiff was injured in the course and scope of his employment while riding in an automobile driven by defendant, a fellow employee of plaintiff, who at the time was carrying plaintiff to his home in the conduct of his employer’s business and pursuant to authority and direction given him by his employer. Under facts found by the court, plaintiff may not hold defendant liable in an action at law for negligence, since defendant was a person conducting the business of his employer within the purview of the immunity provision of G.S. 97-9. Warner v.

Leder, 234 N.C. 727, 69 S.E. 2d 6; Bass v. Ingold, 232 N.C. 295, 60 S.E. 2d 114; Essick v. Lexington, 232 N.C. 200, 60 S.E. 2d 106. The rule stated in Warner v. Leder, supra, has been applied and recognized in McNair v. Ward, 240 N.C. 330, 82 S.E. 2d 85; Johnson v. Catlett, 246 N.C. 341, 98 S.E. 2d 458.

Judge McLean’s findings of fact are supported by competent evidence, and they support the judge’s conclusions of law that plaintiff cannot maintain his action at common law against defendant, his co-employee, and that plaintiff’s exclusive remedy is against McGuinn, his employer, and his insurance carrier for compensation as provided in the N. C. Workmen’s Compensation Act, G.S. 97-10.1, which conclusions of law are correct, and they in turn support the judge’s judgment sustaining defendant’s plea in bar and dismissing plaintiff’s action for want of jurisdiction of the court over the subject matter of the action.

Affirmed.