Hanks v. Southern Public Utilities Co.

• Decision Date: 08 February 1933
• Docket Number: 554.
• Citation: 167 S.E. 560,204 N.C. 155
• Parties: HANKS v. SOUTHERN PUBLIC UTILITIES CO.
• Court: North Carolina Supreme Court

167 S.E. 560

204 N.C. 155

HANKS v. SOUTHERN PUBLIC UTILITIES CO.

No. 554.

Supreme Court of North Carolina

February 8, 1933

Appeal from Superior Court, Wilkes County; Walter E. Moore, Judge.

Action by W. C. Hanks, administrator of Curtis Hanks, deceased against the Southern Public Utilities Company. Upon the overruling of a demurrer to plaintiff's complaint, the defendant appealed.

Affirmed.

The plaintiff filed a complaint to recover damages for personal injury. A demurrer thereto was sustained, and thereupon the plaintiff filed an amended complaint alleging that his intestate was killed on December 6, 1929. The cause of death was contact with a guy wire improperly insulated; and it was also alleged that the defendant negligently failed to furnish the deceased with safe and suitable tools and appliances with which to perform his duties. Paragraph 10 of the complaint is as follows: "That at the time of the grievance herein set forth and at no time prior thereto had the plaintiff's intestate accepted the provisions of the Workmen's Compensation Act (Code 1931, § 8081 (h) et seq.) or by any acts or conduct acquiesced in or agreed to become bound by the provisions thereof." The defendant demurred to the amended complaint for that on December 6 1929, the date of the injury and death, plaintiff's intestate was employed by the defendant "in its business in the State of North Carolina, and that his alleged injury occurred in the State of North Carolina, and that such employee was subject to the provisions of the North Carolina Workmen's Compensation Act." The demurrer was overruled, and the defendant appealed.

T. C Bowie, of Jefferson, and Wm. M. Allen, of Elkin, for appellee.

Manly Hendren & Womble, of Winston-Salem, for appellant.

BROGDEN J.

The defendant contended that the injury occurred subsequent to the enactment of the Workmen's Compensation Law, and that, as a result, the cause was cognizable by the Industrial Commission. The plaintiff contended that the Workmen's Compensation Act was unconstitutional, for that it impaired the right of trial by jury, guaranteed by the Constitution of North Carolina.

The constitutionality of the Workmen's Compensation Act was upheld in Heavner v. Lincolnton, 202 N.C. 400, 162 S.E. 909. See, also, Hagler v. Highway Commission, 200 N.C. 733, 158 S.E. 383.

The plaintiff alleges in paragraph 10 of the complaint that his intestate had not accepted the...