Mallard v. F. M. Bohannon, Inc., 220 N.C. 536 (1942)

Jan. 7, 1942 · Supreme Court of North Carolina

220 N.C. 536

MRS. LOUISE NORRELL MALLARD v. F. M. BOHANNON, INC., Employer; and MARYLAND CASUALTY COMPANY, Carrier.

(Filed 7 January, 1942.)

1. Master and Servant § 55d—

Where there is sufficient competent evidence to sustain a finding of the Industrial Commission, the admission of other evidence, even if incompetent, cannot be held prejudicial, since a finding supported by sufficient competent evidence is conclusive.

2. Same—

Under the Workmen’s Compensation Act the Industrial Commission is given the duty and the exclusive authority to find facts relative to controverted claims, and, with the exception of jurisdictional facts, its findings supported by competent evidence are conclusive and binding upon the courts.

3. Master and Servant §§ 39c, 52b—

Where claimant establishes the jurisdictional facts that the contract of employment was made in this State, that the employer’s place of business is in this State, and that the residence of the employee is within this State, the burden is upon the employer and the insurance carrier to show that the contract of employment was expressly for service exclusively outside the State and thus bring themselves within the proviso of the Act. Michie’s N. C. Code, 8081 (rr).

4. Master and Servant § 39c—

Whether a contract of employment is expressly for service exclusively outside the State is a question of fact for the determination of the Industrial Commission.

5. Same — Evidence held sufficient to support finding that contract of employment was not expressly for service exclusively outside the State.

The deceased employee was tilled in an accident arising out of and in the course of his employment as a salesman in another state. Claimant introduced evidence that the contract of employment was made in this State, that the employer’s place of business is herein, and that the employee was a resident of this State. The employer and the insurance carrier denied liability on the ground that the employment was expressly for service exclusively outside the State. The employer’s assistant sales-manager testified that, subject to the approval of the home office, he could have changed the employee’s territory at any time to North Carolina. Seld: The testimony of the assistant salesmanager was competent and is sufficient to support the finding of the Industrial Commission that the contract of employment was not expressly for service exclusively outside the State and the award of compensation is upheld.

Devin, J., concurring.

Barnhill, J., dissenting.

Stacy, C. J., and Winborne, J., concur in dissent.

Appeal by defendants from Warlich, J., at September Term, 1941, of Forsyth.

Affirmed.

Tbe bearing Commissioner, T. A. "Wilson, Chairman, beard tbe evidence, found tbe facts and made an award to plaintiff. Upon application for review from tbe bearing Commissioner, tbe Full Commission rendered tbe following opinion and order:

"Opinion for the Full Commission by Pat Kimzey, Commissioner.

“Tbis cause was reviewed by tbe Full Commission on April 16, 1941.

“Appearances: Charles J. Bloch, Attorney, 614-18 Georgia Casualty Building, Macon, Ga., for plaintiff. "W". C. Ginter, Attorney, Charlotte, N. C., for defendants.

“Tbis case came on for review and was beard by tbe Full Commission at Raleigh, North Carolina, on April 16, 1941.

“Tbe Full Commission has carefully considered tbe briefs filed and tbe able arguments made by counsel for both plaintiff and defendants, and after so doing tbe Full Commission adopts as its own and in all respects approves and affirms tbe findings of fact of Hearing Commissioner Wilson and makes tbe following additional

"Findings of Fact: A. Tbat plaintiffs deceased sustained an injury by accident arising out of and in tbe course of bis employment with tbe defendant employer resulting in bis death while be was employed elsewhere than in tbe State of North Carolina. B. Tbat tbe contract of employment of plaintiffs deceased and defendant employer was made in tbe State of North Carolina, and tbat tbe defendant employer’s place of business is in tbe State of North Carolina. Tbe Full Commission adopts as its own and in all respects approves and affirms tbe conclusions of law of tbe Hearing Commissioner and in addition thereto makes tbe following:

"Conclusions of Law:

“1. Section 36 (8081 [rr]) of tbe North Carolina Workmen’s Compensation Act reads, in part, as follows: Where an accident happens while tbe employee is employed elsewhere than in this State which would entitle him or bis dependents to compensation if it bad happened in this State, tbe employee or bis dependents shall be entitled to compensation, if tbe contract of employment was made in this State, if tbe employer’s place of business is in this State, and if tbe residence of tbe employee is in this State; provided bis contract of employment was not expressly for service exclusively outside of tbe State.’

“Tbe only question in this case which is seriously controverted is whether or not the contract of employment of plaintiff’s deceased was expressly for service exclusively outside of tbe State of North Carolina. Tbe defendants contend tbat said contract of employment was expressly for service exclusively outside of tbe State; while tbe plaintiff contends tbat said contract was not expressly for service exclusively outside tbe State.

“Tbe evidence adduced at tbe bearing tends to show tbat tbe plaintiff’s deceased bad worked exclusively outside tbe State of North Carolina since be bad been employed by tbe defendant employer. This evidence further tends to show tbat plaintiff’s deceased was originally employed to perform work which bad been previously performed by another employee who worked exclusively outside tbe State of North Carolina. However, in tbe opinion of tbe Full Commission tbe fact tbat an employee worked exclusively outside the State of North Carolina, or tbat be filled the position which had previously been occupied by a person working exclusively outside tbe State of North Carolina, is not the test as to whether or not the North Carolina Industrial Commission has jurisdiction in cases of this nature. Tbe clause pertaining to this matter as included in Section 36 is clear and reads as follows: . . provided his contract of employment was not expressly for service exclusively outside of the State.’

“Tbe evidence adduced at tbe bearing, elicited from a defendants’ witness, tbe sales manager for tbe defendant employer, tends to sbow tbat plaintiff’s deceased was employed verbally to work for tbe defendant employer and tbat for tbe time being be was assigned to territory outside of tbe State of North Carolina, but tbat being a resident of North Carolina be was looking forward to performing tbat same type of work in tbe State of North Carolina, and bad even gone so far as to state tbat be would like to work in North Carolina, and tbe defendant employer, through its Sales Manager, bad at least intimated and implied to said plaintiff’s deceased tbat be would be assigned a North Carolina territory when a vacancy occurred. Therefore, it appears from tbe evidence, meager though it may be, that tbe contract of employment between plaintiff’s deceased and tbe defendant employer was not expressly for service exclusively outside tbe State of North Carolina.

“Tbe defendants contend tbat this evidence is not competent, basing their contentions undoubtedly on paragraph 1795 of tbe North Carolina Code of 1939. However, in tbe case at bar this testimony was elicited from a witness for tbe defendants and was adverse to tbe interest of said defendants. Therefore, it is tbe opinion of tbe Full Commission tbat said testimony in tbe manner and form and under tbe circumstances it was adduced is competent. However, this appears to be more or less an academic question in this case if Section 36 of tbe Workmen’s Compensation Act is closely examined.

“It is a well-established rule tbat, generally speaking, tbe burden is on tbe plaintiff to sbow by tbe preponderance of tbe evidence tbat be is entitled to compensation under the provisions of tbe Act. However, in reading Section 36, it is noticed tbat tbe requirements tbat tbe contract of employment was made in this State, tbe employer’s place of business is in this State, and tbe residence of tbe employee is in this State are all affirmative requirements, and tbat therefore, tbe burden is placed upon tbe plaintiff to sbow tbat those requirements are met if tbe North Carolina Industrial Commission is to have jurisdiction in said case. However, tbe phrase or clause immediately following tbe affirmative requirements has tbe following verbiage: . Provided bis contract of employment was not expressly for service exclusively outside of tbe State.’

“This appears, therefore, to be a negative requirement following tbe affirmative provisions and it is tbe opinion of tbe Full Commission tbat tbe burden of showing by tbe greater weight of evidence tbat tbe contract of employment was not expressly for service exclusively outside tbe State of North Carolina would rest on tbe defendants, and therefore, tbat even if tbe record was absolutely silent as to this last negative phrase, tbat tbe plaintiff would be entitled to compensation if be bad met all of tbe affirmative provisions in tbis section. Tbis tbongbt and reasoning is at least implied in tbe ease of Reaves v. Mill Company, 216 N. C., 462, in wbicb Justice Seawell in writing tbe majority opinion states as follows:

“ ‘Tbe North Carolina Workmen’s Compensation Act, Chapter 120, Sec. 36, Public Laws of 1929, provides: “Where an accident happens while tbe employee is employed elsewhere than in tbis State, wbicb would entitle him or bis dependents to compensation if it bad happened in tbis State, tbe employee or bis dependents shall be entitled to compensation if tbe contract of employment was made in tbis State, if tbe employer’s place of business is in tbis State, and if tbe residence of tbe employee is in tbis State; . . .” In so far as it depends upon tbe statute alone, tbe jurisdiction of tbe Industrial Commission attaches only (a) if tbe contract of employment was made in tbis State; (b) if tbe employer’s place of business is in tbis State; and (c) if tbe residence of tbe employee is in tbis State. All these circumstances must combine to give tbe jurisdiction.’

“It is noted that Justice Seatvell in enumerating these jurisdictional provisions does not mention anything concerning tbe negative provisions in reference as to whether or not tbe contract of employment was not expressly for services exclusively outside tbe State. Justice Clarlcson dissenting in tbe same case above quotes uses in connection with tbe conditions wbicb would give the North Carolina Industrial Commission jurisdiction practically tbe same language as Justice Seawell on page 467 of N. C. 216.

“Tbe defendants contend and cite tbe case of Wilson v. Clement Co., 207 N. C., 541, as authority for their contentions that tbe bearing Commissioner should be reversed. Tbe Full Commission can see very little, if any, connection between tbe two cases. Tbe defendants further cite Reaves v. Mill Co., 216 N. C., 462, as authority to support tbe contention that tbe North Carolina Industrial Commission does not have jurisdiction in tbe case at bar. Tbis case does involve jurisdictional questions, but tbe Full Commission was reversed on entirely different conditions than those which arise in tbe case at bar. Therefore, tbe Full Commission concludes as a matter of law that tbe contract of employment of plaintiff’s deceased was made in tbe State of North Carolina; that tbe employer’s place of business was in tbe State of North Carolina; that tbe residence of tbe employee was in tbe State of North Carolina, and that said contract of employment was not expressly for service exclusively outside tbe State of North Caroliná.

“Counsel for tbe plaintiff appearing before tbe Full Commission made a verbal motion that tbe plaintiff’s attorney’s fees for appearing before tbe Full Commission be taxed as a part of tbe costs against tbe defendants under tbe provisions of Section 62 of tbe Workmen’s Compensation Act. Tbe Full Commission is of tbe opinion tbat tbe question of wbetber or not plaintiff’s deceased in tbe case at bar was expressly employed to work exclusively outside tbe State of North Carolina is a debatable one, and tbe question is one wbicb under tbe same circumstances of tbis case bas neither been decided by tbe Full Commission nor tbe Courts of North' Carolina and, therefore, tbat tbe defendants should not be penalized by asking that said case be reviewed by tbe Full Commission. Therefore, plaintiff’s motion tbat tbe attorney’s fees for appearing before tbe Full Commission be taxed as a part of tbe costs against tbe defendants is denied.

"Award: Tbe Full Commission adopts as its own and in all respects approves and affirms tbe award of bearing Commissioner Wilson. Tbe defendants will pay all bearing costs. Pat Kimzey, Commissioner. Examined and approved: T. A. Wilson, Chairman, Burén Jurney, Commissioner — 4/29/41. Certified copy: J. S. Massenburg, Secretary.”

“An appeal having been taken in tbe above entitled cause by tbe defendants, through their attorney, W. 0. Ginter, tbe case having been beard by tbe North Carolina Industrial Commission, and in pursuance of tbe certificate of J. S. Massenburg, Secretary of tbe North Carolina Industrial Commission, under date of June 2, 1941, said defendants hereby file tbe said certificate and attached transcript of evidence and complete record in accordance with tbe statute, and request tbat tbe same be docketed for trial in tbe Superior Court of Forsyth County in accordance with tbe law. Tbis tbe 4th day of June, 1941. F. M. Bohannon, Inc., and Maryland Casualty Company. By: W. 0. Ginter, Attorney for Defendants.”

Tbe judgment of tbe Superior Court is as follows: “Tbis cause being beard in due course, at tbe September 1941 Term of tbe Court, on tbe appeal of tbe defendants from an Award of tbe North Carolina Industrial Commission in favor of tbe Claimant, Mrs. Louise Norrell Mallard, and after bearing arguments of counsel for tbe Claimant and of counsel for tbe defendant insurance carrier, and tbe Court being of tbe opinion tbat tbe award of tbe North Carolina Industrial Commission in favor of tbe Claimant should be in all respects affirmed: It is, Therefore, Ordered, Adjudged and Decreed tbat tbe award of tbe North Carolina Industrial Commission is in all respects affirmed, said award being tbat tbe defendants pay to tbe Claimant, Mrs. Louise Norrell Mallard, compensation at tbe rate of $18.00 per week, beginning as of September 26, 1940, and continuing until $6,000 is paid, less $200.00 burial expense, wbicb shall be paid to tbe proper parties and tbat tbe defendants pay tbe medical expenses, if any were incurred, and tbe costs of tbe bearing before tbe North Carolina Industrial Commission. It is Further Ordered that the costs of this appeal be taxed against the defendants. Wilson Warlick, Judge Presiding.”

To the foregoing judgment and the signing of the same, the defendants, and each of them, in open court, excepted, assigned error, and appealed to the Supreme Court of North Carolina.

Hall & Bloch and Roy L. Deal for plaintiff.

W. C. Ginter, H. Bryce Parker, and L. B. Carpenter for defendants.

ClabKSON, J.

The defendants excepted and assigned as error: “That the Court erred in its findings of fact and conclusions of law in signing the judgment, as appears of record.” We cannot so hold.

The other exceptions and assignments of error, as to the incompetency of evidence, cannot be sustained. If error, it was not prejudicial. There was sufficient competent evidence to sustain the finding of the Industrial Commission and the conclusions of law we think are correct.

In Buchanan v. Highway Com., 217 N. C., 173 (174-5), Devin, J., for the Court, says: “Under the North Carolina Workmen’s Compensation Act, dealing with the matter of compensation for injuries due to the hazards of industry, both the duty and the exclusive authority to find the facts relative to controverted claims are vested in the Industrial Commission, and it is provided by section 60 of the Act that upon review the award of the Commission shall be conclusive and binding as to all questions of fact. In accord with this statutory provision it has been uniformly held by this Court that, when supported by competent evidence, the findings of fact by the Industrial Commission are conclusive on appeal, and are not subject to review by the Superior Court or the Supreme Court. . . . (citing authorities). The only exception to this rule is where the jurisdiction of the Industrial Commission is challenged. . . . (citing authorities). The powers of the Superior Court with reference to appeals from the Industrial Commission are pointed out in Tindall v. Furniture Co., 216 N. C., 306” (citing authorities).

Section 36 of the Workmen’s Compensation Act (Consolidated Statutes, 8081 [rr]), provides: “Where an accident happens while the employee is employed elsewhere than in this State, which would entitle him or his dependents to compensation if it had happened in this State, the employee or his dependents shall be entitled to compensation, (a) if the contract of employment was made in this State, (b) if the employer’s place of business is in this State, and (c) if the residence of the employee is in this State; provided his contract of employment was not expressly for service exclusively outside of the State.” (Letters inserted — italics ours.)

As is admitted in the second paragraph on page 2 of appellants’ brief, the three conditions set forth in Section 36 above quoted are met by claimant in this ease: (a) the contract of employment was made in North Carolina; (b) the employer’s place of business is in North Carolina; and (e) the residence of the employee was in North Carolina.

In Reaves v. Mill Co., 216 N. C., 462 (465), this Court stated: “In so far as it depends upon the statute alone, the jurisdiction of the Industrial Commission attaches only (a) if the contract of employment was made in this State; (b) if the employer’s place of business is in this State; and (c) if the residence of the employee is in this State. All these circumstances must combine to give the jurisdiction.” Brooks v. Carolina Rim & Wheel Co., 213 N. C., 518.

In 71 Corpus Juris, sec. 724, in part, at p. 960, it is said: “Where the Act extends the jurisdiction of the Commission to injuries suffered outside the State under a contract of employment made in the State, unless the contract otherwise provides, the Commission has jurisdiction of an injury incurred outside the State where the contract of employment was made in the State and it appears that there was acceptance of the terms of the Act by the parties.”

The finding of the Industrial Commission that from the competent evidence the plaintiff was entitled to recover, bring up, we think, the only serious question.

The proviso to the Act is: “Provided his contract of employment was not expressly for service exclusively outside of the State.” The burden is oil the defendants to bring themselves within the proviso.

In S. v. Davis, 214 N. C., 787 (793), it is written: “It has long been settled in this State that although the burden of establishing the corpus delicti is upon the State, when defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, the onus of proof as to such matter is upon the defendant. S. v. Arnold, 35 N. C., 184; S. v. McNair, 93 N. C., 628; S. v. Buchanan, 130 N. C., 660; S. v. Smith, 157 N. C., 578. In discussing this phase of the law in S. v. Connor, 142 N. C., 700, Hoke, J., says: 'It is well established that when a statute creates a substantive criminal offense, the description of the same being complete and definite, and by a subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution. . . . In such circumstances, a defendant charged with the crime who seeks protection by reason of the exception, has the burden of proving that he comes within the same. S. v. Heaton, 81 N. C., 543; S. v. Goulden, 134 N. C., 743,’ ” citing many authorities. S. v. Carpenter, 215 N. C., 635 (639).

In. Haywood v. Ins. Co., 218 N. C., 736, we find: “Tbe defendant’s denial placed tbe burden on tbe plaintiff to prove bis case by tbe greater weight of tbe evidence, and it was error for tbe trial judge to direct a verdict in favor of tbe plaintiff without leaving it to tbe jury to determine tbe credibility of tbe testimony. McIntosh, Practice & Procedure, 632. ‘A familiar principle of practice forbids a directed instruction in favor of tbe party upon whom rests tbe burden of proof,’ ” citing many authorities.

In Jones v. Waldroup, 217 N. C., 178 (189), it is said: “But tbe burden is upon one who asserts an affirmative plea to establish it by appropriate proof. Benner v. Phipps, supra (214 N. C., 14) ; Everett v. Mortgage Co., supra (214 N. C., 778); Mitchell v. Whitlock, 121 N. C., 166, 28 S. E., 292; Mayo v. Jones, 78 N. C., 402.”

Tbe determination of tbe question of fact, whether “bis contract of employment was not expressly for service exclusively outside of tbe State,” was for tbe Industrial Commission — the fact-finding body.

Plaintiff’s deceased, E. L. Mallard, was an employee of defendant, F. M. Bohannon, Inc. Its place of business was in North Carolina. E. L. Mallard and bis wife bad their domicile in North Carolina, and tbe contract of employment, which was oral, was made in North Carolina. E. M. Bohannon, Inc., bad accepted tbe provisions of tbe Compensation Act and tbe Maryland Casualty Company was tbe carrier. Mallard met bis death on 26 September, 1940, as tbe result of an accident arising out of and in tbe course of bis employment. This made out a prima facie case. It was for tbe Industrial Commission to determine whether tbe defendants’ evidence rebutted tbe prima facie case.

T. R. Thornton, then assistant sales manager, now sales manager of F. M. Bohannon, Inc., employed Mallard. He was a witness for defendants and testified: “Q. Mr. Thornton, tbe territory assigned to him (Mallard) was South Georgia and parts of North Florida? Ans.: Yes, sir. Q. He was subject to change of territory at any time tbe company decided it was to tbe company’s best interest to change him, wasn’t be? Ans.: Yes, sir. . . . Q. And be was subject to change of territory at any time that tbe F. M. Bohannon Company, Inc., or you as Mr. Mallard’s superior officer, decided it was to tbe best interest of tbe company to change bis territory? Ans.: Yes, sir. ... I am Sales Manager for everything we have. I travel all tbe states we work.” Thornton could have placed Mallard in North Carolina. F. M. Bohannon, Inc., bad employees in North Carolina whose duties were similar to those of Mallard. Thornton testified further: “Q. You’d have tbe right to tell Mr. Mallard you wanted him to go to North Carolina or Virginia, subject to tbe home office’s approval? Ans.: With tbe permission of tbe home office, yes, sir.”

The inference is permissible that the borne office would do wbat Thornton recommended, as he had employed Mallard and was high in authority. We think all this • evidence competent on the question involved in the proviso. The Commission had sufficient competent evidence to find the facts, this is not our province to weigh and determine the facts. There are different statutes in different states and the decisions, on that account, can be of little help. In order to avoid liability, under the facts of this ease, the insurance carrier would have had to prove that Mallard’s' contract of employment was expressly for services exclusively outside the State. The evidence is sufficient to support a contrary conclusion. It is shown by the evidence that under the contract of employment, the employer could have moved plaintiff’s deceased, E. L. Mallard, at any time to any place in Thornton’s territory, which territory embraced the State of North Carolina.

The arguments and briefs of the litigants were able and thorough, and covered every aspect of the case; but on the record we think the judgment of the court below should be

Affirmed.

DeviN, J.,

concurring: It was admitted that the injury by accident resulting in the death of Mallard arose out of and in the course of his employment by the defendant, and that the contract for his employment was made in North Carolina, and that the place of business of the employer and the residence of the employee were also in this State. Hence, the award of compensation under the Workmen’s Compensation Act must be upheld, unless the defendants can invoke the protection of the proviso under sec. 36 of the Act: “Provided his contract of employment was not expressly for services exclusively outside of the State.” As to this the burden of proof was on the defendant. Unless they can show that the evidence in support of their contention is all one way, and that there are no permissible inferences of fact to the contrary, the findings of the Industrial Commission must be held conclusive, and judgment below affirmed. While the evidence tends to show that Mallard was assigned territory outside of the State, and that he was there employed continuously until his death, it also appears that under the oral contract of employment the territory assigned could be changed at any time, if the defendant employer saw fit, and that without changing the terms of the contract he could have been placed in North Carolina. Hence, it would seem that the contract of employment was “not expressly for services exclusively outside of the State.”

BaeNhill, J.,

dissenting: Ordinarily, a State statute has no extraterritorial application or effect. Sec. 36 of ch. 120, Public Laws 1929, was included in the Act to meet this limitation in so far as it applies to employees working both within and without the State, and so as to permit compensation when such employee is -injured while engaged in work in another state. That is, this provision was inserted for the protection of North Carolina employees who are injured while engaged in the performance of their duties elsewhere than in this State. It does not protect employees whose duties are performed entirely outside the bounds of North Carolina.

The injured employee, or in case of death, his dependents, must show that the injury or death is compensable under the terms of the Act. When the employee is about his master’s business elsewhere than in this State injury or death is not compensable unless the employment “was not expressly for services exclusively outside of the State.” The proviso is not negative. It imposes a condition, the section as a whole constituting an exception to the general rule and stipulating the conditions upon which compensation is payable. Hence, the Commission erred in its conclusion that the burden ivas on defendants and that “even if the record was silent as to' this last negative phrase, that the plaintiff would be entitled to compensation if he had met all of the affirmative provisions of this section.”

When it was made to appear that (1) the contract of employment was made in this State; (2) the employer’s place of business is in this State; and (3) the residence of the employee is in this State, the conditions upon which the jurisdiction of the Industrial Commission depends were met. Reaves v. Mill Co., 216 N. C., 462, 5 S. E. (2d), 305. These and other jurisdictional facts are admitted. Whether the death of the employee is compensable then became an issue of fact for the Commission to decide. On this record the answer depends upon a preliminary finding as to whether the contract of employment was or was not expressly for services exclusively outside the State.

On this issue the Commission found “that the plaintiff’s deceased sustained an injury by accident arising out of and in the course of his employment with the defendant Employer, resulting in his death, while he was employed elsewhere than in the State of North Carolina.”

Upon this finding it made the further finding as a conclusion of law that:

“The evidence adduced at the hearing tends to show that the plaintiff’s deceased had worked exclusively outside the State of North Carolina since he had been employed by the defendant employer. This evidence further tends to show that plaintiff’s deceased was originally employed to perform work which had been previously performed by another employee who worked exclusively outside the State of North Carolina. However, in the opinion of the Full Commission the fact that an employee worked exclusively outside the State of North Carolina is not the test as to whether or not the North Carolina Industrial Commission has jurisdiction in cases of this nature. The clause pertaining to this matter as included in Section 36 is clear and reads as follows: (Quoting the proviso in said section.)

“The evidence adduced at the hearing, elicitated from a defendant’s witness, the sales manager for the defendant employer, tends to show that plaintiff’s deceased was employed verbally to work for the defendant employer and that for the time being he was assigned to territory outside of the State of North Carolina, but that being a resident of North Carolina he was looking forward to performing that same type of work in the State of North Carolina, and had even gone so far as to state that he would like to work in North Carolina, and the defendant employer, through its Sales Manager, had at least intimated and implied to said plaintiff’s deceased that he would be assigned a North Carolina territory when a vacancy occurred. Therefore, it appears from the evidence, meager though it may be, that the contract of employment between plaintiff’s deceased and the defendant employer was not expressly for service exclusively outside the State of North Carolina.”

The circumstances under which plaintiff’s deceased was employed are clear. The sales agent of defendant who was assigned certain territory in south Georgia and northern Florida died. Mallard, a resident of North Carolina, was then living in Georgia and unemployed. The sales manager of the defendant, on the solicitation of others, contacted him and, after obtaining the approval of the home office, employed him.

The terms of the contract of employment are simple and unambiguous. Mallard was to be assigned to the same territory in south Georgia and north Florida formerly worked by the deceased agent. He was to sell defendant’s products within that territory and was to be paid upon a salary and commission basis. He sought and obtained employment- — ■ not as a general employee but as an agent or representative within specific limited territory.

Neither the fact “that he was looking forward to performing the same type of work in the State of North Carolina and had even gone so far as to state that he would like to work in North Carolina” nor the fact that the sales manager — his superior officer- — “had intimated and implied that he would be assigned to North Carolina territory in the event of a vacancy” tends to modify the contract. They not only make it appear that it was not “written in the bond” that he was subject to transfer at will without notice, but emphasize and compel the conclusion that it was expressly agreed that he was to work exclusively within the territory assigned. Else why hope for or seek the promise of a transfer in the future ?

The statement of the sales manager that he could transfer Mallard to other territory in the event of a vacancy and provided the home office consented merely constitutes bis interpretation of bis rights under tbe contract. He does not say that such condition was imposed at the time of the hiring or that the employee assented thereto. No change could be made except by and with the consent of the home office and then only in the event of a vacancy. These were, under his statement, conditions precedent to a transfer.

Thus the contract was expressly for services exclusively outside of the State of North Carolina.

Having been assigned definite territory elsewhere he was not a North Carolina employee. Dunville v. Industrial Commission, 279 N. W., 695 (Wis.); Sherk v. Dept. of Labor & Industries, 65 Pac. (2d), 1269 (Wash.); Lutz v. State Workers Ins. Fund, 188 Atl., 364 (Pa.); Sou. Underwriters v. Gallagher, 136 S. W. (2d), 590 (Tex.). Under the terms of the contract he had no authority to go elsewhere than in the territory assigned to sell defendant’s products and he could not have done so without invading the right of some other agent and causing defendant to breach its contract with the agent to whom such other territory had been assigned.

No particular or rule-of-thumb expression is required to make a contract “expressly” for services outside North Carolina. All that is necessary is for it to be made to appear from the terms of the contract that it was mutually understood and agreed that the employee’s duties were to be performed in their entirety elsewhere than in this State.

Under the contract of employment the deceased was a local agent. Navy Gas & Supply Co. v. Schoech, 98 Pac. (2d), 860 (Cal.) ; White Co. v. Farley & Co., 292 S. W., 472 (Ky.); 52 A. L. R., 541; Lutz v. State Workers Ins. Fund, supra. His authority as such was limited by and his duties were to be performed exclusively within specified territory located entirely outside this State. He could act for and in behalf of his employer within the scope of his authority only in south Georgia and north Florida. Thus, his agency was circumscribed by territorial limitations. Outside the area assigned to him he had no duties to perform or no right to act as agent in furtherance of defendant’s business. Hence, it affirmatively appears that the employment was expressly for services exclusively outside the State. Lederer Specialty Co. v. Chapman, 152 N. E., 872 (Ind.). See also Martin v. Kennecott Copper Corp., 252 Fed., 207; Dunville v. Industrial Commission, supra; Sherk v. Dept. of Labor & Industries, supra; Lutz v. State Workers Ins. Fund, supra; Sou. Underwriters v. Gallagher, supra.

In the Chapman case, supra, the facts are substantially the same. There the Court said “this contract assigning Georgia territory was, by its express terms, to be performed in its entirety without the State of Indiana and in the State of Georgia.”

The General Assembly was without authority to legislate in respect to this employee and it is apparent to my mind that it did not undertake to do so. “There is no doubt that a contract made within the State of New York for services to be performed wholly in a sister State is wholly without the police power of the State of New York and does not give a right to compensation under our Workmen’s Compensation Law.” Perlis v. Lederer, 178 N. Y. Supp., 449; Post v. Burger & Gohlke, 216 N. Y., 544, 111 N. E., 351; Smith v. Heine Safety Boiler Co., 224 N. Y., 9, 119 N. E., 878.

The Court should take judicial notice of whatever is or ought to be generally known within the limits of their jurisdiction. S. v. Vick, 213 N. C., 235, 195 S. E., 779, 15 R. C. L., 1057. Applying this principle, we know that, in this day of complex business conducted by large corporations engaged in the business of selling merchandise to wholesalers and retailers over extended territory, such territory is divided into districts in charge of district sales managers; that such districts are still again subdivided into smaller sections or territories to each of which is assigned a salesman; and that each salesman works only within the territory assigned to him to the exclusion of others. His authority as agent begins and ends at the boundary line of his territory. This is true particularly when compensation is in whole or in part on a commission basis.

When the contract under consideration is viewed in the light of these known prevailing customs and conditions under and in contemplation of which it was made we, in my opinion, cannot come to any conclusion other than that the claimant has failed to bring herself within the provisions of Section 36 of the Workmen’s Compensation Act.

The case comes to this: claimant’s deceased was employed to represent defendant as its local sales agent in designated territory wholly outside North Carolina. He worked within that territory exclusively until his death — a period of approximately three years. He could not be transferred to other territory by his superior except by the express permission of the home office and then only in the event of a vacancy. He was working on a salary and commission basis. Soon after entering upon his employment he expressed a desire to be transferred to North Carolina. His superior officer intimated that he would give his request consideration in the event of a vacancy. The Commission concluded that this “desire” and “intimation” so modified the contract as to subject the employee to transfer at will — thus constituting him a North Carolina employee. The Superior Court affirmed and the majority opinion approves. I am compelled to disagree. In my opinion we should reverse.

Even if we concede that the contract and the evidence offered present a question of fact the cause should be remanded.

Tbe Commission states that it considered the evidence very meager. Upon this evidence it reached its conclusion under the apprehension that the burden was on the defendant. It should be required to review its findings and conclusions under correct principles of law as to the burden of proof. In that event, in all probability, it would find the “meager” evidence wholly insufficient to support an award.

Stacy, C. J., and "WiNbobNe, J., concur in dissent.