Crawford v. General Ins. & Realty Co., 37
| Decision Date | 02 March 1966 |
| Docket Number | No. 37,37 |
| Citation | 146 S.E.2d 651,266 N.C. 615 |
| Parties | Jimmie Wade CRAWFORD, Administrator of Jerry Crawford Estate, Plaintiff, and B. L. Pressley, Additional Party-Plaintiff, v. GENERAL INSURANCE AND REALTY COMPANY and Homer Hobbs, Defendants. |
| Court | North Carolina Supreme Court |
Paul K. Barnwell and Redden, Redden & Redden, Hendersonville, for plaintiff.
Prince, Jackson, Youngblood & Massagee, Hendersonville, for additional plaintiff.
Uzzell & DuMont, Asheville, for defendants.
Plaintiffs in their brief filed here contend they have alleged these ultimate facts: Jerry Crawford was on and prior to November 20, 1963, employed by B. L. Pressley. The employee was on that date killed 'by accident arising out of and in the course of his employment.' Plaintiff was serving as administrator of the employee's estate by appointment by the Superior Court of Henderson County. Deceased 'is survived, among others, by his wife, who is sickly and unable to earn a living for herself.' Deceased employee had prior to his death an average weekly wage of $45. '* * * Jerry Crawford, and B. L. Pressley, as part of their contract of employment and for the protection of both, contracted and agreed that Mr. B. L. Pressley would obtain a contract of insurance or insurance policy which would comply with the North Carolina Workmen's Compensation Laws or Act, Chapter 97 of the General Statutes of North Carolina, and both contracted and agreed that each would accept the benefits, limitations, advantages and disadvantages provided by the said North Carolina Compensation Act, and both had agreed that the contract of insurance, for their protection, would contain the same protection and limitations as a contract of insurance required by the North Carolina Workmen's Compensation Act.' Defendants, partners, are insurance agents or brokers selling workmen's compensation insurance; they contracted in June 1963 to procure for B. L. Pressley a policy of insurance 'which would meet all the requirements as to liability and benefits as required by the North Carolina Compensation Act, Chapter 97 of the General Statutes of North Carolina.' As consideration for defendants' contract to procure the insurance, Pressley paid defendants the sum of $587. Notwithstanding their contract, defendants failed to procure the insurance. If defendants had complied with their contract and procured compensation insurance, plaintiff Crawford would be entitled to an award of $9450, plus $400 for funeral expenses. He prays for the recovery of these sums.
B. L. Pressley, as an additional party plaintiff, filed in the General County Court a writing stating that he adopted plaintiff's complaint 'as his Complaint in this action as fully as if the same were copied and fully set forth herein, and asks for the same relief as in said Complaint set forth, except that the amount paid for workmen's compensation insurance was approximately $181.60.'
There is no express allegation in the complaint that Pressley had less than five employees, and because he employed less than five our Compensation Act was not applicable to his employees.
The defendants demurred for failure to state a cause of action, for that (1) it affirmatively appeared there was no privity between plaintiff and defendants and defendants would not be obligated in any way whatsoever to the plaintiff or plaintiff's intestate, and (2) that plaintiff's intestate and B. L. Pressley were subject to and bound by the provisions of the North Carolina Workmen's Compensation Act, and that any liability of the said Pressley has to date not been determined under the provisions of such act.
Plaintiff contends that the burden rests on defendant in actions in courts of law for compensation for injuries to employees to show that the jurisdiction which the courts would...
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