Barber v. Minges
| Decision Date | 02 June 1943 |
| Docket Number | 383. |
| Parties | BARBER v. MINGES et al. |
| Court | North Carolina Supreme Court |
The plaintiff administratrix brought this action to recover damages for the injury and death of her intestate, Guy A Barber, which she alleges was caused by the negligence of defendants.
The defendants were engaged in bottling and distributing soft drinks, with an office or plant at Salisbury, and Barber was employed by them in that business. Pursuant to a custom of providing an annual outing for employees and their families in the promotion of goodwill, the defendants, through an agent, Sloop, organized and conducted a fishing trip to South Carolina, which Barber and members of his family attended at the invitation of the defendants. Part of the trip was made by a gasoline driven boat down Little River, South Carolina and to the fishing grounds off the Coast. There, in an attempt to start the engine by priming with gasoline poured from bottles, the boat was set on fire by an explosion of gasoline vapor, and plaintiff's intestate died as a result of burns he received.
Various acts of negligence are attributed to Sloop in the complaint including the hiring of an unsafe boat, permitting open cans and bottles of gasoline to be used, from which the air in the boat became saturated with gasoline vapor and exploded by a spark from the engine.
The defendants moved to dismiss the action upon the ground that the North Carolina Industrial Commission had exclusive jurisdiction of the controversy under the Workmen's Compensation Act, Chapter 120 Public Laws of 1929, as amended by Chapter 123 Public Laws of 1935 Michie's Code of 1939, Sec. 8081(h) et seq. The court below dismissed the action on that ground, and plaintiff appealed.
J. Frank Spruill, of Lerington, and Stahle Linn, of Salisbury, for plaintiff, appellant.
Hayden Clement, of Salisbury, and Battle, Winslow & Merrell, of Rocky Mount, for defendants, appellees.
On the facts alleged in the complaint, is plaintiff's demand within the exclusive jurisdiction of the Industrial Commission under the terms of the Workmen's Compensation Act, and her right to maintain an action under C.S. § 160 for the wrongful death of her intestate defeated?
It would seem that the answer should be in the negative unless the facts alleged, or reasonable inferences from them, show that the relation of master and servant existed between the parties, at the time, with respect to the transaction resulting in the injury and death; or, in other words, that the negligence causing the death was incident to the employment. That, simply stated, is the position of the plaintiff. She contends that the complaint, in its factual statements, negatives these essential conditions of jurisdiction under the Act. The position of the defendants is expressed in their brief as follows:
Carried to its logical extreme, this would confer immunity from liability upon an employer who inflicts a negligent injury on an employee while the latter is not engaged in any activity of his employment and is far from the scene of his duties, while he is on the way to the grocer or to church, or wherever he has the right to be in the pursuit of his own affairs. The contention is too sweeping to merit serious attention except for the fact that counsel for defense cite certain decisions of this Court which have been recognized as having that significance. Pilley v. Greenville Cotton Mills, 201 N.C. 426, 160 S.E. 479; Francis v. Carolina Wood Turning Company, 208 N.C. 517, 181 S.E. 628. We will examine these cases later.
The major argument here, on both sides, was addressed to this issue, and it constitutes almost the entire subject matter of the briefs. The condition in which the subject is left in the Pilley and Francis cases demands attention to that phase of the legal controversy, however obvious the principles governing the jurisdiction may now appear.
I. Section 11 of the Act reads as follows: "The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, as against his employer at common law, or otherwise, on account of such injury, loss of service, or death." Public Laws of 1929, Chapter 120, Section 11; Michie's Code, 1939, Sec. 8081(r).
The incidence of the law is on the status created by the contract of employment. It deals with the incidents and risks of that employment, in which concededly is included the negligence of the employer in that relation. It has no application outside the field of industrial accident; and does not intend, by its general terms, to take away common law or other rights which pertain to the parties only as members of the general public, disconnected with the employment. Schneider, Vol. 1, p. 3, sec. 2. Expressions in Sec. 11 regarding the surrender of the right to maintain common law or statutory actions against the employer are not absolute--not words of universal import, making no contact with time, place or circumstance. They must be construed within the framework of the Act, and as qualified by its subject and purposes.
The primary purpose of legislation of this kind is to compel industry to take care of its own wreckage. It is said to be acceptable to both employer and employee, because it reduces the cost of settlement and avoids delay. To the employee, it means a certainty of some sort of compensation for an injury received in the course of business; and to the employer, it reduces unpredictability of loss and puts it on an actuarial basis, permitting it to be treated as "overhead," absorbed in the sales price, and thus transferred to that universal beast of economic burden, the consumer. Allen v. State, 173 A.D. 455, 160 N.Y.S. 85; Village of Kiel v. Industrial Commission, 163 Wis. 441, 158 N.W. 68. It is said to be humanitarian and economical as opposed to wasteful in the conduct of the enterprise, and is referred to the propriety of keeping loss by accident incidental to employment chargeable to the industry where it occurs. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372, 376, L.R.A.1916A, 436. It is called an economic system of trade risk. Losses incident to industrial pursuits are like wrongs and breakage of machinery--a cost of production. Mackin v. Detroit-Limken Axle Co., 187 Mich. 8, 153 N.W. 49, 51; Village of Kiel v. Industrial Commission, supra. It should be charged against the industry responsible for the injury. Klawinski v. Lake Shore & M.S.R. Co., 185 Mich. 643, 152 N.W. 213, 214, L.R.A. 1916A, 342; Schneider, Workmen's Compensation Law, Permanent Edition, S. 1.
The Industrial Commission is not a court of general jurisdiction. It can have no implied jurisdiction beyond the presumption that it is clothed with power to perform the duties required of it by the law entrusted to it for administration. As is often the case in legislation of this type, the more definitive expressions of jurisdiction are found in the procedural features of the law. See Sec. 1, subsection (f), Michie's Code of 1939, Sec. 8081(i)(f). In most jurisdictions having provisions in the law comparable to Sec. 11--many of them are identical--the courts have felt constrained to construe the law as exclusive only with respect to injuries for which compensation is provided and not to exclude common law actions where no such provision is made. Barrencotto v. Cocker Saw Co., 266 N.Y. 139, 194 N.E. 61; Boyer v. Crescent Paper Box Factory, 143 La. 368, 78 So. 596; Donnely v. Minneapolis Mfg. Co., 161 Minn. 240, 201 N.W. 305; Triff v. National Bronze & Aluminum Foundry Co., 135 Ohio St. 191, 20 N.E.2d 232, 121 A.L.R. 1131, overruling Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538, 140 N.E. 405, and Mabley & Carew Co. v. Lee, 129 Ohio St. 69, 193 N.E. 745, 100 A.L.R. 511; Covington v. Berkeley Granite Corp., 182 Ga. 235, 184 S.E. 871. See annotations 100 A.L.R. 519 and 121 A.L.R. 1143.
Our Court has not observed this rule, but dealing with certain unscheduled occupational diseases has held common law actions to be excluded, although the Act makes no provision for compensation. Lee v. American Enka Corporation, 212 N.C. 455, 193 S.E. 809; Murphy v. American Enka Corporation, 213 N.C. 218, 195 S.E. 536. But in these cases the condition admittedly and allegedly arose out of the employment. The cases do not support defendants' contention.
In Francis v. Carolina Wood Turning Co., 208 N.C. 517 181 S.E. 628, upon which the defendants mainly rely, the decision, as the opinion states, "is affirmed on the authority of Pilley v. Greenville Cotton Mills, 201 N.C. 426, 160 S.E. 479," and it is said that the facts in that case are identical "in the instant case." But the two cases are similar only in legal history--in the fact that before a common law action was resorted to, the claims were...
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