Hanks v. Southern Public Utilities Co.

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN, Justice.
• Citation: Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252 (N.C. 1936)
• Decision Date: 15 June 1936
• Docket Number: 745.
• Parties: HANKS v. SOUTHERN PUBLIC UTILITIES CO.

186 S.E. 252

210 N.C. 312

HANKS v. SOUTHERN PUBLIC UTILITIES CO.

No. 745.

Supreme Court of North Carolina

June 15, 1936

Appeal from Superior Court, Forsyth County; Hill, Special Judge.

Proceeding under the Workmen's Compensation Act by W. C. Hanks administrator of Curtis Hanks, deceased, opposed by the Southern Public Utilities Company, employer and self-insurer. From a judgment overruling a decision of the Industrial Commission denying compensation, and remanding the case to the Commission for proper award, the employer appeals.

Judgment affirmed.

STACY C.J., and CONNOR, J., dissenting.

Petition by plaintiff for an award under the Workmen's Compensation Act on account of the death of his intestate arising out of and in the course of his employment by the defendant.

It was admitted that the deceased, Curtis Hanks, was at the time of his injury and death on December 6, 1929, in the employ of defendant, and that the provisions of the Workmen's Compensation Act (Pub.Laws 1929, c. 120, Code 1931, § 8081(h) et seq.) apply. The claim for an award is resisted, however on the ground that plaintiff elected to pursue his remedy by original action in the superior court of Wilkes county (where plaintiff resided) under the Federal Employers' Liability Act, and did not prosecute claim under the Workmen's Compensation Act, until the action in the superior court had been ended adversely to him and after the lapse of more than five years from the date of the injury.

The Industrial Commission heard the case, and rendered decision denying compensation August 16, 1935.

The findings of fact of the Industrial Commission were, in brief, substantially as follows:

Curtis E. Hanks, the deceased, was employed by the defendant, and on December 6, 1929, he died by reason of injuries received by accident arising out of and in the course of his employment, and both plaintiff and defendant are subject to the provisions of the North Carolina Workmen's Compensation Act, defendant being self-insurer. The deceased was unmarried, and left surviving him his father, mother, and one brother, none of whom were dependent upon him, and his father, the plaintiff, has duly qualified as administrator of his estate. Plaintiff can neither read nor write.

Under date of December 9, 1929, defendant employer made report of the accident to the Industrial Commission on form 19, and this report was received December 11, 1929. Defendant also made supplemental report on form 29, received by the commission on December 26, 1929: "From the evidence at the hearing, it was found as a fact that shortly following the death of the deceased the defendant admitted liability for compensation under the Workmen's Compensation Act and offered to pay the same to the personal representative of deceased."

On January 7, 1930, the Industrial Commission wrote the plaintiff relative to claim for compensation by reason of the death of Curtis E. Hanks, and advised him that a question had been raised as to dependents, and that it would have to be determined by a hearing, and asked for the names of all persons claiming dependency.

No reply was received to this letter.

On January 8, 1930, defendant utilities company received a letter from W. M. Allen, attorney at law, Elkin, N. C., advising that the matter had been placed in his hands, and that he would proceed under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, and not under the State Compensation Act. Copy of this letter was sent to the Industrial Commission, and thereupon the commission wrote Attorney Allen asking upon what ground he proposed to proceed without taking notice of the Workmen's Compensation Act, and stating: "We are inclined to believe in view of your plans, as expressed to us by the employer, the Industrial Commission should of its own motion set this case for a hearing. This will be done unless we receive from you a satisfactory reply to this letter not later than January 20, 1930." No reply was received from said attorney.

Under date of February 13, 1930, the Industrial Commission again wrote Attorney Allen, stating it was understood the defendant had offered to pay the dependents of "Clifton E. Hanks," deceased (evidently meaning Curtis Hanks), compensation under the Workmen's Compensation Act, but that the dependents had refused to enter into an agreement, and inquiring why compensation was refused.

No reply was received to this letter, and on March 18, 1930, the commission again wrote Attorney Allen, saying: "If your clients have abandoned this claim for compensation, so advise me in order that we may retire this file."

No reply was received to this letter.

On August 10, 1933, the commission wrote defendant's counsel as follows:

"It occurs to us that you might now let us have from the Southern Public Utilities Company a closing report on Form 28B, as we infer that the Southern Public Utilities Company will not voluntarily offer to pay compensation, having taken the position that claim for compensation was not filed with the Industrial Commission within one year from the date of the accident.

We note that in your letter of March 6th you suggested that we express an opinion as to whether or not under the circumstances the claimant had waived compensation. We should have replied to your letter; nevertheless, we do not feel that we should express an opinion in advance of a hearing which the dependents or personal representative of the deceased may request. We enclose copy of Form 28B referred to above."

Thereafter, on August 14, 1933, the defendant made report showing names of employer and employee, date of death, payment of $50.50 medical expenses, and $198 funeral benefits. Under question 11 on this report: "Does this report close the case? (Yes or No)," the defendant wrote as follows: "The father of the employee instituted suit in the Superior Court of Wilkes County under the style W. C. Hanks, Administrator, v. Southern Public Utilities Company for $50,000 damages, caused by the alleged wrongful death of the employee. Southern Public Utilities Company made regular report of this accident to the Industrial Commission, but no claim was ever filed with the Commission on behalf of the employee, and the employee's administrator and attorneys have repudiated the Workmen's Compensation Act and elected to stand upon their common law rights. Suit is still pending in Wilkes County."

It also appeared in evidence that plaintiff administrator instituted suit against the defendant in the superior court of Wilkes county on July 7, 1930; that defendant filed demurrer to the complaint on ground that claim for compensation for death of Curtis Hanks was solely cognizable before the North Carolina Industrial Commission. The demurrer was overruled, as the facts did not sufficiently appear on the face of the complaint, and on appeal to this court the ruling of the superior court was affirmed (204 N.C. 155, 167 S.E. 560). Thereafter answer was filed and the case remained in the superior court of Wilkes county until January 8, 1935, when voluntary nonsuit was entered. Formal petition for an award and request for a hearing thereon was filed by the plaintiff before the Industrial Commission on March 23, 1935.

From the decision of the Industrial Commission denying compensation, the plaintiff appealed to the superior court of Forsyth county, and, from judgment of the superior court overruling the Industrial Commission and remanding the case to the Industrial Commission for an award under the act, defendant appealed to this court.

B. S. Womble and W. P. Sandridge, both of Winston-Salem, for appellant.

Robert H. McNeill, of Washington, D. C., George H. McNeill, of Morehead City, George P. Pell, of Raleigh, and Whitman & Motsinger, of Winston-Salem, for appellee.

DEVIN Justice.

The only question presented by this appeal is whether plaintiff's right to compensation on account of the death of his intestate, Curtis E. Hanks, was barred by reason of failure to give notice of the accident to the defendant employer, as required by section 22 of the North Carolina Workmen's Compensation Act (Pub.Acts 1929, c. 120, Code 1931, § 8081 (dd), and by failure to file claim with the North Carolina Industrial Commission within one year after the death of plaintiff's intestate, as required by section 24 of said act (Code 1931, § 8081 (ff).

The North Carolina Workmen's Compensation Act requires that the injured employee or his representative shall give, or cause to be given, written notice of the accident to the employer, and the employer is required to make report in writing of the accident to the North Carolina Industrial Commission within ten days after the occurrence and knowledge thereof, and later to make a supplemental report. Code 1931, §§ 8081 (dd) and 8081 (vvv).

The act further provides that right to compensation shall be barred unless a claim be filed with the Industrial Commission within one year after the accident. Code, § 8081 (bb).

In Hardison v. Hampton, 203 N.C. 187, 165 S.E. 355, where more than one year elapsed from the date of injury to the request for hearing by the injured employee, it was held that "there is no provision in the North Carolina Workmen's Compensation Act requiring an injured employee to file a claim for compensation for his injury with the North Carolina Industrial Commission," and that, "when the employer has filed with the commission a report of the accident and claim of the injured employee, the commission has jurisdiction of the matter, and the claim is filed with the commission within the meaning of section 24."

In the instant case it appeared that the injury and death of Curtis E. Hanks on December 6, 1929, while in the employ of defendant, was known to the...