Byers v. North Carolina State Highway Commission, 12

• Citation: 275 N.C. 229,166 S.E.2d 649
• Decision Date: 09 April 1969
• Docket Number: No. 12,12
• Parties: Mrs. Esther BYERS, Widow and Administratrix of Estate of Weaver Byers, Deceased, Employee, v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Employer, Standard Concrete ProductsCompany, Third-Party Tortfeasor.
• Court: United States State Supreme Court of North Carolina

Page 649

166 S.E.2d 649

275 N.C. 229

Mrs. Esther BYERS, Widow and Administratrix of Estate of Weaver Byers, Deceased, Employee, v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Employer, Standard Concrete ProductsCompany, Third-Party Tortfeasor.

No. 12.

Supreme Court of North Carolina.

April 9, 1969.

Hayes & Hayes, by Kyle Hayes, North Wilkesboro, for plaintiff-appellant.

HIGGINS, Justice.

The facts controlling decision in this case are not in dispute. On and prior to May 25, 1965, Weaver Byers was a regular employee of the North Carolina State Highway Commission. Both employer and employee were subject to, and their employment relations were governed by, the North Carolina Workmen's Compensation Act. The employer was a self-insurer.

On May 25, 1965, Weaver Byers was injured when the highway bridge on which he was at work collapsed. He died the following day as a result of his injuries. The Highway Commission admitted liability under the Workmen's Compensation Act. Under orders of the North Carolina Industrial Commission, the employer paid hospital and burial expenses, and is continuing to pay $37.50 per week to the employee's dependents. The Highway Commission's outlay on account of Byers' death will exceed $12,000.

Within one year after the death of Weaver Byers, his widow, administratrix of his estate, instituted in the Superior Court of Wilkes County a wrongful death action against Standard Concrete Products Company, alleging her intestate's death was proximately caused by the actionable negligence of the defendant as a responsible third party and that by reason thereof the estate had been damaged in the sum of $50,000. Specifically, she alleged the bridge on which her husband was at work collapsed when the agent of the defendant attempted to drive a truck load of concrete, total weight 40,000 lbs., over the bridge which he knew was designed to carry a load not in excess of 20,000 lbs.

The wrongful death action came on for trial at the May-June, 1966 Civil Session, Wilkes Superior Court. At the conclusion of the plaintiff's evidence, the court sustained the defendant's motion for compulsory nonsuit. From the judgment dismissing the action, the plaintiff appealed. This Court reversed the judgment and remanded the cause to the Superior Court for trial. 268 N.C. 518, 151 S.E.2d 38. Although notified of the trial in the wrongful death action and the appeal from judgment of nonsuit, nevertheless, the Highway Commission failed to participate or to render assistance in prosecuting the appeal.

After this Court remanded the cause, the parties signed a consent judgment and the defendant, according to the agreement, paid into court the sum of $7,500 in full settlement of all liability to the estate. In consideration of the settlement, the Highway Commission executed to Standard Concrete Products Company a release from all liability.

Mrs. Byers, administratrix, filed a petition before the Industrial Commission requesting an order: (1) approving the settlement; and (2) adjudging the net recovery belonged to her as personal representative or in the alternative, a finding the Highway Commission, by failing to assist in prosecuting the appeal from the nonsuit judgment, had abandoned its right to claim any of the proceeds arising from the settlement.

The Chairman of the Industrial Commission, and on further review the full Commission, ordered that the amount of recovery, less cost and attorney's fee, be paid to the Highway Commission as subrogee. On appeal from the Industrial Commission's order, Judge Gambill, in the Superior Court, purported to make extensive findings of fact, and based thereon, reversed the judgment of the Industrial Commission and directed that the remaining funds, after payment of cost and attorney's fee, be paid to the administratrix 'for distribution among the heirs at law of the deceased'. The Highway Commission, as subrogee, appealed to the North Carolina Court of Appeals which reversed the judgment of the Superior Court and remanded the cause for distribution according to the award of the Industrial Commission.

The order of the Industrial Commission and the decision of the Court of Appeals are clearly correct. They followed precisely the requirements of G.S. § 97--10.2(f)(1)(a)(b)(c). The Superior Court fell into error in two particulars. First, the court failed to realize that in case an employee subject to the Workmen's Compensation Act is injured or killed as a result of the negligence of a third party, recovery for the injury or death 'shall be distributed by order of the Industrial Commission for the following purposes and in the following order of priority:' (a) payment of court costs; (b) payment of the attorney's fee; (c) reimbursement of the employer for all benefits by way of compensation or medical treatment expenses paid or to be paid by the employer under award of the Industrial Commission; (d) payment of any remaining amount to the employee or his personal representative. Since the passage of the Compensation Act, this Court has held recovery from a responsible third party must be distributed by the Industrial Commission according to the order of priority set out in the Act. 'The distribution of any recovery (in a tort action against a third party) is a matter for the Industrial Commission under G.S. 97--10.2(f).' Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 141 S.E.2d 808; Cox v. Pitt County Transportation Co., 259 N.C. 38, ...