Brown v. Southern Ry. Co.

• Decision Date: 17 February 1932
• Docket Number: 597.
• Citation: 162 S.E. 613,202 N.C. 256
• Parties: BROWN v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

162 S.E. 613

202 N.C. 256

BROWN v. SOUTHERN RY. CO. et al.

No. 597.

Supreme Court of North Carolina

February 17, 1932

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

Action by Chester Brown, administrator of M. T. Askew, deceased against the Southern Railway Company and another. From an order making Chester Brown, trading as Chero-Cola Bottling Company, a party defendant and granting plaintiff's motion to strike certain paragraphs of the original defendants' answer, plaintiff and the original defendants appeal.

Reversed in plaintiff's appeal, and affirmed in defendant's appeal.

This action was begun in the superior court of Buncombe county. Plaintiff is the administrator of M. T. Askew, who died in the city of Asheville, N. C., on January 20, 1930. The action is to recover of the defendants Southern Railway Company and J. E. Divelbliss damages for the death of plaintiff's intestate.

It is alleged in the complaint that on or about January 20, 1930 plaintiff's intestate was struck and killed by one of the engines of the defendant Southern Railway Company while the said engine was being operated by the defendant J. E Divelbliss as an engineer employed by the said railway company, at Sulphur Springs Crossing on state highway No. 10 that at the time he was struck and killed plaintiff's intestate was driving a truck owned by the Chero-Cola Bottling Company of Asheville, N. C., as an employee of said company, and that the proximate cause of the death of plaintiff's intestate was the negligence of the defendants Southern Railway Company and J. E. Divelbliss as specifically alleged in the complaint. Plaintiff demands judgment that he recover of the defendants Southern Railway Company and J. E. Divelbliss the sum of $50,000 as damages for the death of his intestate.

After the complaint was filed, the defendants Southern Railway Company and J. E. Divelbliss moved before the clerk of the superior court of Buncombe county that Chester Brown, trading as Chero-Cola Bottling Company, be made a party defendant to the action. In support of their motion, the said defendants filed an affidavit tending to show that the death of plaintiff's intestate was caused by the negligence of the Chero-Cola Bottling Company, his employer, and that he contributed to the injuries which resulted in his death by his own negligence. They moved that the Chero-Cola Bottling Company be made a defendant in the action on the ground that, if the said defendants by their negligence as alleged in the complaint caused the death of plaintiff's intestate, and for that reason are liable to plaintiff in this action, the said Chero-Cola Bottling Company by its negligence as alleged in the affidavit contributed to his death, and is for that reason jointly liable with defendants to plaintiff in this action. The said defendants relied on the provisions of section 618 of the N.C. Code of 1931, which are to the effect that, in all cases pending in the courts of this state, in which the plaintiff seeks to recover damages of the defendant as a joint tort-feasor, the defendant may at any time before judgment is obtained, upon motion, have the other joint tortfeasors made parties defendant to the action. The motion was allowed by the clerk of the superior court, and plaintiff appealed to the judge of the superior court of Buncombe county.

After summons had been duly served on Chester Brown, trading as Chero-Cola Bottling Company, in accordance with the order of the clerk of the superior court, the defendants Southern Railway Company and J. E. Divelbliss filed an answer to the complaint. In this answer, they denied the allegations of the complaint, which are essential to plaintiff's cause of action against them. For a third and further answer and defense to said cause of action, the said defendants alleged in said answer:

"1. That on and prior to the 20th day of January, 1930, the plaintiff's intestate, M. T. Askew, was in the employ of Chester Brown, trading and doing business under the name of Chero-Cola Bottling Company, and that on and prior to said date the plaintiff's intestate and said Chester Brown were operating under the terms and provisions of the Workmen's Compensation Act for the State of North Carolina, as ratified and approved by the General Assembly of North Carolina, on the 11th day of March, 1929, and that pursuant thereto, as defendants are informed and believe, the said Chester Brown, operating as aforesaid, caused to be taken out a certain insurance policy, by the terms of which it was set forth and provided that in the event of the death or injury of the said M. T. Askew, while in the employ of the said Chero-Cola Bottling Company, he or his representatives should receive compensation from said insurance company, in accordance with the terms and provisions of said Workmen's Compensation Act.

"2. That as defendants are informed and believe, after the death of the said M. T. Askew, as alleged in the complaint, and after the said Chester Brown duly qualified as Administrator of his estate, the said Chester Brown, Administrator as aforesaid, entered into negotiations with the Industrial Commission of the State of North Carolina, which Commission is charged with the supervision and approval of settling with the employees when injured, or their representatives in the event of death, and thereafter the said Chester Brown, Administrator as aforesaid, accepted a settlement and award as made by the said Industrial Commission as aforesaid; and has disbursed, or is holding said funds for the benefit of the estate of M. T. Askew, deceased.

"3. That if the said Chester Brown, trading as Chero-Cola Bottling Company, did not take out insurance for the benefit of plaintiff's intestate and his estate in case of his death, and of other employees of said Chero-Cola Bottling Company, then said Chero-Cola Bottling Company itself, as defendants are advised, informed and believe, through and with the consent of the Industrial Commission, settled with the estate of plaintiff's intestate, to-wit:--with Chester Brown, Administrator, and the said Chester Brown, Administrator, has disbursed said funds or is holding them for the benefit of the estate of M. T. Askew, deceased.

"4. That said Chester Brown, Administrator as aforesaid, in accepting said compensation, on account of the death of the said M. T. Askew, is barred to prosecute this action against these answering defendants on his own behalf, and these defendants hereby plead said settlement, acceptance and award so made by said Administrator in bar of the plaintiff's right to prosecute this action.

"5. That the plaintiff, Chester Brown, Administrator of the estate of M. T. Askew, deceased, is not the real party in interest in the institution and prosecution of this action; that in the event of any recovery in said action, said sum so recovered would not, in law, or in fact, go to the estate of M. T. Askew, deceased, but to the contrary, would be disbursed by the said Chester Brown, Administrator, either to the Chero-Cola Bottling Company, or to the insurance company which was carrying the liability and risk on the Chero-Cola Bottling Company; that these answering defendants are not advised as to the name of said insurance company, but they aver and say that said insurance company or the Chero-Cola Bottling Company above mentioned, is the real party in interest, and should be made a party to this action, in order that defendants may be advised of their rights in the premises."

After the answer had been filed by the defendants Southern Railway Company and J. E. Divelbliss, the plaintiff in apt time moved that paragraphs 1, 2, 3, 4, and 5 of the third further answer and defense as set out in said answer be stricken therefrom for that--

"(a) Said defense states a conclusion of law and puts no facts in issue.

"(b) It attempts to set up as a further defense that the plaintiff's intestate, M. T. Askew, received compensation under the Workmen's Compensation Act of the State of North Carolina, and that the plaintiff holds said alleged settlement for the benefit of the estate of M. T. Askew, and for that reason the plaintiff is barred from prosecuting this action; and further attempts to set forth that the plaintiff is not the real party in interest and that the sum so recovered would not in law or in fact go to the estate of the said M. T. Askew, but that the insurance company or the Chero-Cola Bottling Company is the real party in interest; that any and all of such facts, if true, raise questions of law and not questions of fact to be passed upon by the jury; that it is expressly provided in the Workmen's Compensation Act of North Carolina, ratified by the General Assembly on March 11, 1929, in section 11, that the acceptance of an award under this Act for compensation for the injury or death of an employee shall operate as an assignment to the employer of any right to recover damages which the injured employee may have against any other party for such injury or death; and that such employer shall be subrogated to any such right and may enforce in his own name or in the name of the injured employee, or his personal representative, the legal liability of such party.

"And said section of said Act further provides that the amount of compensation paid by the employer or the amount of compensation to which the assured or the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages, but any amount collected by the employer under the provisions of the section, in excess of the amount paid by the employer or for which he is liable, shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less...