Brown v. Southern Ry. Co.

• Decision Date: 24 May 1933
• Docket Number: 606.
• Citation: 169 S.E. 419,204 N.C. 668
• Parties: BROWN v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

169 S.E. 419

204 N.C. 668

BROWN v. SOUTHERN RY. CO. et al.

No. 606.

Supreme Court of North Carolina

May 24, 1933

Appeal from Superior Court, Buncombe County; Sink, Judge.

Action by Chester Brown, administrator of the estate of M. T. Askew deceased, against the Southern Railway Company and another. From a judgment striking out an amended answer, defendants appeal.

Reversed.

This cause was considered by the court and the opinion reported in 202 N.C. 256, 162 S.E. 613, where the facts are set forth in detail.

After the decision was rendered the defendant filed an amended answer by leave of court alleging:

"1. That as stated in the affidavit of plaintiff administrator heretofore filed in this action, plaintiff's intestate M. T. Askew, was at the time of his death an employee of Chester Brown, trading and doing business as Chero-Cola Bottling Company, and as such, the administrator of the said M. T. Askew, was entitled to receive and did receive and accept compensation under the provisions of the Workmen's Compensation Act (Code 1931, § 8081(h) et seq.) of the State of North Carolina, and that plaintiff herein, to-wit: Chester Brown, administrator as aforesaid pursuant to the terms and provisions of the said Workmen's Compensation Act of the State of North Carolina, accepted a settlement and award, on account of the fatal injury to the said M. T. Askew, made by the Industrial Commission of the State of North Carolina under the terms and provisions of the said Act, and the amount so awarded by the said Industrial Commission has been paid to and accepted by the said Chester Brown, administrator aforesaid.

"2. That as stated in the opinion of the Supreme Court of North Carolina in this case (see 202 N.C. 256, 162 S.E. 613), the said Chero-Cola Bottling Company, or its insurance carrier, 'are primarily the beneficiaries in whose behalf the action is prosecuted by the plaintiff as the personal representative of the deceased employee.' That if an insurance carrier be the real party in interest in this case, then, and in that event, the rights of said insurance carrier would be such rights only as it acquired by way of subrogation from said employer, Chester Brown, trading and doing business as Chero-Cola Bottling Company.

"3. That the employer of the said M. T. Askew, to-wit: the said Chester Brown, trading and doing business as the said Chero-Cola Bottling Company, was guilty of negligence which contributed to and proximately caused the death of the said M. T. Askew in the respects set forth in the original answer filed in this action by these defendants, and in the second and further answer and defense set forth therein; that the aforesaid negligence of the employer of the said M. T. Askew, to-wit: Chester Brown, trading and doing business as said Chero-Cola Bottling Company, was the proximate cause of the death of the said M. T. Askew, and the said negligence of the said employer is here and now expressly pleaded in bar of any recovery in this action.

"4. That the aforesaid negligence of the said employer was the proximate cause of the death of the said M. T. Askew and the said negligence is here and now expressly pleaded in bar of any recovery in this action insofar as the said employer or its insurance carrier may be beneficiaries in whose behalf this action is prosecuted; that to allow any recovery in this action insofar as the case may be for the benefit of the said employer or the said insurance carrier, would be allowing the said employer (and the said insurance carrier to the extent that it may be subrogated) to profit by its own wrong, in that the negligence of the said employer as hereinbefore referred to contributed to and proximately caused the fatal injury and death of the said M. T. Askew."

Upon motion duly made by the plaintiff, the trial judge struck out said amended answer for the reason that the same was "immaterial and irrelevant."

From the judgment so rendered, the defendants appealed.

R. C. Kelly, of Greensboro, and Jones & Ward, of Asheville, for appellants.

Harkins, Van Winkle & Walton, of Asheville, for appellee.

BROGDEN Justice.

Is the defense of the contributory negligence of the employer available to a third party, in a suit by the employer against such third party to recover the sum paid by the employer as compensation for the negligent killing of an employee?

In the former decision in this case, reported in 202 N.C. 256, 162 S.E. 613, it was held that the employer was not a joint tort-feasor with the defendant so far as the rights of the estate of the deceased employee was concerned. The reason for such conclusion is that the Compensation Act established an exclusive remedy for an insured employee irrespective of his fault or negligence. Furthermore, the former decision was based upon the assumption that an award had been made by the Industrial Commission to the estate of the dead workman and that same was paid by the employer or his carrier. Consequently, this action is now prosecuted primarily for the benefit of...