Horney v. Meredith Swimming Pool Co., 691

• Decision Date: 16 June 1966
• Docket Number: No. 691,691
• Citation: 148 S.E.2d 554,267 N.C. 521
• Court: North Carolina Supreme Court
• Parties: J. A. HORNEY, Administrator of the Estate of Richard Eugene Horney, Deceased v. MEREDITH SWIMMING POOL COMPANY, Inc., and David Meredith.

Page 554

148 S.E.2d 554

267 N.C. 521

J. A. HORNEY, Administrator of the Estate of Richard Eugene Horney, Deceased v. MEREDITH SWIMMING POOL COMPANY, Inc., and David Meredith.

No. 691.

Supreme Court of North Carolina.

June 16, 1966.

Schoch, Schoch & Schoch, High Point, for plaintiff appellant.

Jordan, Wright, Henson & Nichols and Edward L. Murrelle, Greensboro, for Meredith Swimming Pool Company, Inc., defendant appellee.

Booth, Osteen, Fish & Adams, Greensboro, for David Meredith, defendant appellee.

BOBBITT, Justice.

For purposes of this appeal, we assume, as do the parties in their briefs, (1) that Horney and Pool Company were subject to and bound by the provisions of the Workmen's Compensation Act; (2) that Horney was fatally injured by accident arising out of and in the course of his employment by Pool Company; and (3) that the complaint (sufficiently) alleges Horney's injury and death were proximately caused by the negligence of defendants.

Plaintiff seeks to recover under G.S. § 28--173 which, in pertinent part, provides: 'When the death of a person is caused by a wrongful act, neglect or default of another, Such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors shall be liable to an action for damages, to be brought by the executor, administrator or collector of the decedent; * * *.' (Our italics.)

At common law there was no right of action for wrongful death. Such right of action exists only by virtue of said statute. Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, and cases cited; In re Estate of Ives, 248 N.C. 176, 102 S.E.2d 807, 72 A.L.R.2d 278, and cases cited. The right of action conferred by said statute vests in the personal representative of the deceased. First Union National Bank of North Carolina v. Hackney, 266 N.C. 17, 145 S.E.2d 352, and cases cited.

The right of action for wrongful death 'is limited to 'such as would, if the injured party had lived, have entitled him to an action for damages therefor. " Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835. Hence, the administrator of an unemancipated child whose death is caused by the negligence of his parent has no cause of action against the parent for the wrongful death of the child because such child, if he had lived, would have had no cause of action against the parent on account of his injuries. Goldsmith v. Samet, supra; Lewis v. Farm Bureau Mutual Insurance Co., 243 N.C. 55, 89 S.E.2d 788; Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19; 3 Lee, North Carolina Family Law (Third Edition), § 248, pp. 174--175. On like grounds, neither a parent nor his personal representative has an action for wrongful death against an unemancipated child or his representative. Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676.

G.S. § 97--9 provides: 'Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for Personal injury or death by accident To the extent and in the manner herein specified.' (Our italics.)

G.S. § 97--10.1 provides: 'If the employee and the employer are subject to and have accepted and complied with the provisions of this article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative Shall exclude all other rights and remedies of the employee, His dependents, next of kin, or representative as against the employer At common law or otherwise on account of such injury or death.' (Our italics.)

It is well established by our decisions, based on G.S. § 97--9 and G.S. § 97--10.1, that Horney, if he had lived, could not have maintained a common-law action against the Pool Company, his employer or against Meredith, who was conducting its business. Under the circumstances alleged, a claim against his employer and its insurance carrier under the Workmen's Compensation Act would have been his exclusive remedy. McNair v. Ward, 240 N.C. 330, 82 S.E.2d 85, and cases cited; Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806, and cases cited. As stated in Gregutis v. Waclark Wire Works, 86 N.J.L. 610, 92 A. 354 (N.J.), in considering a similar factual situation, 'the condition upon which a right of action is given to the personal representatives of a deceased person by the Death Act is not present in the case at bar.'

While the foregoing affords sufficient ground for decision that plaintiff cannot recover under G.S. § 28--173, our wrongful death statute, we deem it appropriate to discuss plaintiff's contentions.

G.S. § 97--40, at the time of Horney's injury and death, provided: 'If the deceased employee leaves neither whole nor partial dependents, no compensation shall be due or payable on account of the death of the deceased employee.' Hence, the father, the mother and the two sisters of Horney, although his next of kin, were not entitled to an award of compensation on account of his death because they were not wholly or partially dependent upon him.

In Patterson v. Sears-Roebuck & Co., 196 F.2d 947, the Court of Appeals for the Fifth Circuit affirmed a judgment dismissing the complaint 'for want of a statement of a recoverable claim.' As stated in the opinion of Chief Judge Hutcheson, the plaintiff, administrator of the estate of a deceased employee, alleged 'that decedent left surviving her only a husband, a father, and a brother, no one of whom was in any degree dependent on said decedent, either in fact or within the scope of the definition of dependents as set forth in the Alabama Workmen's Compensation Act, * * *' Decision required consideration of the Workmen's Compensation Act and of the wrongful death statute of Alabama.

It is contended here, as in Patterson v. Sears-Roebuck & Co., supra, that, because the surviving next of kin were not wholly or partially dependent upon the decedent and therefore were not entitled to an award under the Workmen's Compensation Act, the plaintiff is entitled to recover damages under the wrongful death statute. In our opinion, for reasons heretofore and hereafter stated, this contention is unsound. Decisions involving substantially the same factual situation as that considered herein and supporting our conclusion include the following: Gregutis v. Waclark Wire Works, supra; Patterson v. Sears-Roebuck & Co., supra; Chamberlain v. Florida Power Corporation, 144 Fla. 719, 198 So. 486; Howze v. Lykes Bros., 64 So.2d 277 (Fla.); Bigby v. Pelican Bay Lumber Co., 173 Or. 682, 147 P.2d 199 (Or.); Atchison v. May, 201 La. 1003, 10 So.2d 785; Neville v. Wichita Eagle, 179 Kan. 197, 294 P.2d 248 (Kan.); Shanahan v. Monarch Engineering Co., 219 N.Y. 469, 114 N.E. 795; McDonald v. Miner, 218 Ind. 373, 32 N.E.2d 885; Treat v. Los Angeles Gas & Electric Corporation, 82 Cal.App. 610, 256 P. 447. See also, Liberato v. Royer, 281 Pa. 227, 126 A. 257, affirmed in 270 U.S. 535, 46 S.Ct. 373, 70 L.Ed. 719; McDonnell v. Berkshire St. Ry. Co., 243 Mass. 94, 137 N.E. 268 (Mass.).

The Workmen's Compensation Act 'contemplates mutual concessions by employee and employer; for that reason, its validity has been upheld, and its policy approved.' Winslow v. Carolina Conference Association, 211 N.C. 571, 579, 191 S.E. 403, 408. 'The master, in exchange for limited liability, was willing to pay on some claims in (the) future, where in the past there had been no liability at all.' Conrad v. Cook-Lewis Foundry Company, 198 N.C. 723, 725--726, 153 S.E. 266, 268. Liability based on negligence was eliminated. Vause v. Farm Equipment Co., 233 N.C. 88, 91, 63 S.E.2d 173.

The opinion in Howze contains this succinct statement: 'The philosophy of workmen's compensation is that when employer and employee accept the terms of the act their relations become contractual and other statutes authorizing recovery for negligent death become ineffective.' In Chamberlain, on which Howze is based, this thesis is more elaborately discussed and supporting decisions are cited.

Our Workmen's Compensation Act deals expressly with cases where the compensable injury results in death. The remedies provided thereby 'exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.' G.S. § 97--10.1.

This excerpt from the opinion in Shanahan is pertinent: 'A certain liability is imposed for death, and that liability exclusive. No other responsibility is left which springs from the occurrence upon which liability rests--death--and the effect of the compensation as a satisfaction of all other claims is in no way limited or impaired by the circumstances of the identity of the persons to whom it is paid or because in a given case no one survives to take advantage of the statute.' As noted in Schnall v. 1918 Harmon St. Corp., 26 Misc.2d 287, 207 N.Y.S.2d 375: 'If the decedent had lived he would have been entitled to a compensation award; and if he had been survived by a dependent, the latter would have been entitled to such an award.'

As stated in Gregutis: 'Since the Workmen's Compensation Act by its terms repeals all inconsistent legislation, the rights and remedies thereby given are substituted for those theretofore provided by the Death Act. The result is that where, as here, the employe contracts to work under section 2 of the Workmen's Compensation Act, the damages to be paid by the employer in case of death are limited by that act, and an action cannot be maintained in disregard of that act.'

As stated in Patterson: 'Nor is the...