Farr v. Babcock Lumber Co., 182 N.C. 725 (1921)

Dec. 21, 1921 · Supreme Court of North Carolina

182 N.C. 725

ERNEST FARR v. BABCOCK LUMBER COMPANY.

(Filed 21 December, 1921.)

1. Appeal and Error — Fragmentary Appeal — Dismissal.

An appeal from an order dismissing the action as to one cause set forth in the complaint, and retaining it as to other causes therein alleged, is fragmentary, and will be dismissed.

2. Courts — Jurisdiction — Negligence — Foreign Defendants — Lex Loci Contractus.

An employee of a foreign .lumber manufacturing company was injured while engaged in the scope of his duties at one of its plants operated here, and it was properly made to. appear that his services had been engaged by the defendant at its home office. The defendant contended that our courts were without jurisdiction, and that its liability depended upon a workman’s compensation act of the state of its home office: Held,, upon the record, as now appears, there was no error in the Superior Court retaining the second, third, and fourth causes of action, relating respectively to the contractual duty of the defendant to provide and keep a physician at the camp where the plaintiff was injured, and its neglect to furnish him transportation to his home, as elements of damage.

Walker, J., concurs only in dismissal of appeal.

Appeal by defendant from Harding, J., at tbe Spring Term, 1921, of Gkaiiam.

Tbe plaintiff is a resident of Grabam County, and tbe defendant is a foreign corporation, engaged in tbe manufacture of lumber, witb plants in Tennessee. Tbe defendant owned timber lands in Grabam County and operated a railroad for bauling logs from Grabam to its plants. Tbe defendant bad camps, a hospital, and an office in Grabam County. Tbe plaintiff, an employee of tbe defendant, was injured while in tbe prosecution of tbe work assigned him. Tbe complaint states four causes of action: (1) Defendant’s failure to provide for plaintiff a safe place in which to work; (2) defendant’s failure to keep a physician at tbe camp to attend plaintiff after be was injured; (3) defendant’s employment of an incompetent physician; (4) defendant’s negligent failure to provide plaintiff transportation to bis borne from tbe junction on tbe road of defendant and Knoxville Power Company. Plaintiff alleged that defendant bad undertaken to provide for tbe plaintiff and other employees a competent physician and surgeon when needed, and made a monthly charge or assessment, which was deducted from tbe employees’ wages.

Tbe defendant denied tbe plaintiff’s material allegations and alleged that tbe contract of employment was made in Tennessee and subject to tbe provisions of tbe Workmen’s Compensation Act, passed by tbe General Assembly of Tennessee on 15 April, 1919, and made effective from 1 July, 1919.

Tbe defendant contended that upon the face of tbe pleadings — it having been agreed that the contract of employment bad lleen m^de in Tennessee — tbe court bad no jurisdiction. Tbe court sustained tbe motion as to tbe first cause of action, and overruled it as to tbe second, third, and fourth. Upon tbe intimation of the court, the plaintiff submitted to a nonsuit as to tbe first cause, and did not appeal. Tbe court further adjudged that tbe trial should proceed upon tbe second, third, and fourth causes. Tbe defendant excepted and appealed.

B. L. Phillips and T. M. J enhins for plaintiff.

Merrimon, Adams & Johnston for defendant.

Adams, J.

His Honor beld that the court had no jurisdiction of the first cause of action, and retained the second, third, and fourth causes for trial by jury. The defendant, thereupon excepted and appealed. The order appealed from was not final, or of such character as to deprive the defendant of any substantial right, and fot this reason the appeal was premature. The defendant can preserve its exception until a final judgment is_ rendered. In numerous cases this Court has held that a premature or fragmentary appeal will not be considered. Hailey v. Gray, 93 N. C., 196; Lane v. Richardson, 101 N. C., 182; Mfg. Co. v. Buxton, 105 N. C., 74; Emry v. Parker, 111 N. C., 261; R. R. v. King, 125 N. C., 454.

We are requested, however, to review so much of the judgment as retains for trial the second, third, and fourth causes of action. As now advised, especially in the absence of an opposing interpretation by the Supreme Court of Tennessee, we are of opinion that the sections of the Workmen’s Compensation Act cited and relied on by the defendant do not purport to interfere with the jurisdiction of the Superior Court of Graham as to the second, third, and fourth causes of action stated in the complaint, and that there was no error in his Honor’s order that 'these causes be retained for trial.

Appeal dismissed.

WalKER, J\, concurs only in dismissal of appeal.