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Samuel v. Claude Puckett/Lincoln Used Cars and / or Lewis Jenkins

Filed: January 19, 1982.

GEORGE K. SAMUEL, EMPLOYEE, PLAINTIFF
v.
CLAUDE PUCKETT/LINCOLN USED CARS AND/OR LEWIS JENKINS, NON-INSURER, EMPLOYER DEFENDANT



Appeal by plaintiff from order of North Carolina Industrial Commission entered 4 November 1980. Heard in the Court of Appeals 21 October 1981.

Webb, Judge. Judges Martin (Harry C.) and Wells concur.

Webb

The plaintiff's first assignment of error deals with the findings of fact by Deputy Commissioner Roney. The plaintiff contends the evidence does not support the findings of fact that the automobile which the plaintiff was driving at the time he was injured was owned by Lewis Jenkins; that Claude Puckett had financed the purchase of the automobile; that the automobiles financed by Puckett were usually titled in his name; and that the plaintiff was employed by Jenkins and not Puckett on 4 February 1976. The plaintiff testified he was employed by Puckett and Jenkins and was instructed by Jenkins as to where to drive the automobile. Mr. Puckett testified he and Jenkins were not partners. We believe this is evidence from which Deputy Commissioner Roney could find the plaintiff was employed by Jenkins,

not Puckett. The testimony of Mr. Puckett supports the other findings of fact about which the plaintiff complains. The plaintiff's first assignment of error is overruled. See Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968).

In his second assignment of error the defendant contends the claim against Lewis Jenkins should not have been determined in this proceeding. We believe this assignment of error has merit. The plaintiff filed a request only as to Puckett that the claim should be set for hearing. The plaintiff and Puckett stipulated that the claim against Puckett only was to be heard. G.S. 97-83 provides in part:

If the employer and the injured employee or his dependents fail to reach an agreement, in regard to compensation under this Article within 14 days after the employee has knowledge of the injury or death . . . either party may make application to the Industrial Commission for a hearing in regard to the matters at issue, and for a ruling thereon.

This statute provides that a hearing may be had when applied for by either party. Whether the Industrial Commission may schedule a hearing without an application from either party, we need not decide. In this case it is clear the Industrial Commission did not schedule a hearing as to the claim against the defendant Jenkins. We hold it was error to determine this claim.

In his third assignment of error the plaintiff contends the Industrial Commission should have struck a finding of fact by Deputy Commissioner Roney as to the consumption of alcoholic beverages by the plaintiff on 4 February 1976. The decision in this case does not depend on this finding of fact and the plaintiff was not prejudiced by it. This assignment of error is overruled.

We affirm as to the claim against the defendant Claude Puckett and reverse as to the claim against the defendant Lewis Jenkins.

Affirmed in part, reversed in part.

Disposit ...


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