Eledge v. Carolina Power & Light Co

• Decision Date: 21 September 1949
• Docket Number: No. 25.,25.
• Citation: 230 N.C. 584,55 S.E.2d 179
• Court: North Carolina Supreme Court
• Parties: ELEDGE. v. CAROLINA POWER & LIGHT CO. et al.

55 S.E.2d 179

230 N.C. 584

ELEDGE.

v.CAROLINA POWER & LIGHT CO. et al.

No. 25.

Supreme Court of North Carolina.

Sept. 21, 1949.

Death action by Margaret M. Eledge, administratrix of John J. Eledge, deceased employee, for the benefit of Coal Operators Casualty Company, compensation insurance carrier, against Carolina Power & Light Company. M. B. Haynes, employer, and Coal Operator's Casualty Company were joined as additional parties defendant pursuant to a cross-complaint.

The Superior Court, Haywood County, Dan K. Moore, J., granted a motion to strike out the cross-action, and plaintiff and the power company appealed.

The Supreme Court, Denny, J., affirmed on both appeals, holding that the power company was not entitled to indemnity against its own negligence but was entitled to show contributory negligence of employer as a bar to recovery by insurance carrier of amount of compensation paid for death of employee.

This is a civil action to recover for the wrongful death of plaintiff's intestate, whom she alleges was killed by the negligence of the Carolina Power & Light Company, while he was engaged in the repair of one of its electric lines as an employee of M. B. Haynes.

The Carolina Power & Light Company, hereinafter referred to as "Power Company", alleged in its answer that it entered into a contract with M. B. Haynes to construct or repair certain electric lines for the Power Company; that the Power Company required Haynes to carry workmen's compensation insurance on his employees and authorized the cost thereof to be included in the contract price and to be paid for by the Power Company.

The defendant Power Company further alleged that pursuant to the terms of the contract between it and M. B. Haynes, the Coal Operators Casualty Company became the insurance carrier for the said Haynes and that the carrier has heretofore entered into an agreement for the payment of compensation for the death of plaintiff's intestate, and further alleged as a defense, that the defendant Power Company held an indemnity agreement with M. B. Haynes, wherein he obligated himself to indemnify and hold the Power Company harmless from any damages or other liability in connection with the work to be done pursuant to the terms of the contract, and filed a cross-action against M. B. Haynes and the insurance carrier, alleging the negligence of M. B. Haynes as a proximate cause of the death of plaintiff's intestate, and made a motion before the Clerk of the Superior Court of Buncombe County that they be made parties to the action. The motion was allowed.

Thereafter this cause was removed to Haywood County by consent of the parties and in the discretion of the trial judge.

In apt time, the plaintiff and the defendants, M. B. Haynes and the Coal Operators Casualty Company, moved to strike from the answer of the Power Company all reference to the Workmen's Compensation Act, the indemnity agreement and the cross-action against Haynes and the Casualty Company.

The trial judge ordered the cross-action stricken out, the plea setting up the indemnity agreement as a defense, and all other allegations directed against Haynes and the Casualty Company in other parts of the answer, and dismissed the action as to them "with leave to the Carolina Power & Light Company, if it so desires, to amend its answer to set forth allegations concerning coverage of the Workmen's Compensation Act and agreement for payment of compensation thereunder to the dependents of plaintiff's intestate by M. B. Haynes, without reference to the amount of such compensation as may be necessary to support its special plea of negligence of said M. B. Haynes as a defense to the action of the plaintiff."

From this ruling the plaintiff and the defendant, Carolina Power & Light Company, appealed, assigning error.

Smith, Leach & Anderson, Raleigh, and Sale, Pennell & Pennell, Asheville, for plaintiff.

R. F. Phillips, Asheville, Robinson & Morgan, Canton, and A. Y. Arledge, Raleigh, for Carolina Power & Light Co.

J. W. Haynes, Asheville, for M. B. Haynes.

Smith, Leach & Anderson, Raleigh, for Coal Operators Casualty Co.

DENNY, Justice.

It clearly appears from the record herein, that a settlement has been agreed upon between the plaintiff as the personal representative of her intestate and the Coal Operators Casualty Company, the insurance carrier for M. B. Haynes, pursuant to the provisions of the Workmen's Compensation Act; and that this action was instituted within six months of the injury and death of plaintiff's intestate.

Under the original provisions of our Workmen's Compensation Act, Section 11, Chapter 120, of the Public Laws of 1929, an employee or his personal representative had to elect whether he would accept the benefits available to him under the Workmen's Compensation Act, or would proceed in a suit at common law against a third party to recover damages...