Butts v. Montague Bros.
| Decision Date | 15 March 1933 |
| Docket Number | 110. |
| Citation | 168 S.E. 215,204 N.C. 389 |
| Parties | BUTTS v. MONTAGUE BROS. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; Grady, Judge.
Proceeding under the Workmen's Compensation Act by Joe Butts claimant, opposed by Montague Brothers, employer, and the Public Indemnity Company, insurance carrier. From judgment dismissing proceeding, to which Lucy Butts, widow of Joe Butts, and administratrix of Joe Butts, deceased, had been made a party, the administratrix appeals.
Reversed.
On May 20, 1931, Joe Butts, an employee of Montague Brothers notified the North Carolina Industrial Commission that he and his employers had been unable to agree upon compensation to be paid to him by his employers for an injury which he had suffered on January 27, 1931, and which he alleged was compensable under the provisions of the North Carolina Workmen's Compensation Act, because the insurance carrier of his employers had denied liability for such compensation.
The claim of Joe Butts for compensation for his injury was heard by Commissioner Dorsett at Goldsboro, N. C., on July 30 1931. On the facts found by said commissioner at said hearing, the claim was denied, and the claimant thereafter gave notice to his employers and to their insurance carrier that he would apply to the full commission for a review of the award of Commissioner Dorsett. The proceeding was docketed for such review on or about September 1, 1931.
After notice to the parties, the proceeding was heard by the full commission at Raleigh, N. C., on September 21, 1931. After said hearing, an award was made by the full commission reversing the award of Commissioner Dorsett, and ordering the payment of compensation to Joe Butts by his employers Montague Brothers, and the Public Indemnity Company, their insurance carrier, in the sum of $14.01, from February 20, 1931, for a period not to exceed 400 weeks, and for all medical and hospital expenses incurred by him on account of his injury. This award was filed by the full commission on October 6, 1931.
Notice of this award was served on the parties to the proceeding on February 3, 1932, and on February 26, 1932, both the employers and their insurance carrier appealed from said award to the superior court of Wayne county.
At March term, 1932, of the superior court of Wayne county, the employers and their insurance carrier moved that the proceeding be dismissed, for that, while the proceeding was pending before the North Carolina Industrial Commission, and before the award was made by said commission, the employee, Joe Butts, had died. This motion was heard at June term, 1932, of the superior court of Wayne county, by Harris, J. At this hearing it was ordered by the court that the proceeding be and the same was remanded to the North Carolina Industrial Commission for the purpose of enabling the employers and their insurance carrier to suggest to the said commission the death of the employee at the date of the award made by the commission on October 6, 1931, and the irregularity of said award for that reason. It was further ordered that the appeal from the award then pending in the superior court of Wayne county be and the same was retained in said court to be heard and determined on its merits, after such action by the Industrial Commission as it might take.
On June 28, 1932, the proceeding was heard by the Industrial Commission pursuant to the order of the superior court. The commission declined to make an order in the proceeding on the ground that it was without jurisdiction so long as the appeal was pending on its merits in the superior court.
On June 30, 1932, Lucy Butts, widow of Joe Butts, was appointed by the clerk of the superior court of Wayne county administratrix of Joe Butts, deceased, and on July 25, 1932 the said Lucy Butts, administratrix of Joe Butts, was made a party to the proceeding by an order of the clerk of the superior court of Wayne county. At the date of this order the proceeding was...
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