Ikerd v. North Carolina R. Co.

• Decision Date: 22 January 1936
• Docket Number: 665.
• Citation: 183 S.E. 402,209 N.C. 270
• Parties: IKERD v. NORTH CAROLINA R. CO. et al.
• Court: North Carolina Supreme Court

183 S.E. 402

209 N.C. 270

IKERD v. NORTH CAROLINA R. CO. et al.

No. 665.

Supreme Court of North Carolina

January 22, 1936

Appeal from Superior Court, Davidson County; McElroy, Judge.

Action by H. A. Ikerd against the North Carolina Railroad Company and another. Judgment for plaintiff, and named defendant appeals.

Affirmed.

Walser & Walser, of Lexington, and Linn & Linn, of Salisbury, for appellant.

McCrary & De Lapp, of Lexington, for appellee.

SCHENCK Justice.

On September 11, 1934, the plaintiff instituted this action against the defendant railroad company to recover damages for personal injuries alleged to have been suffered in a collision between a truck of the Jewel Cotton Mills driven by the plaintiff and the train of the defendant on February 14 1934. Upon motion of the plaintiff the Travelers Insurance Company was made party defendant on April 4, 1935, and in a supplemental complaint it is alleged that on the 15th day of June, 1934, the plaintiff received an award under the provisions of the Workmen's Compensation Act (Pub. Laws 1929, c. 120, as amended) from the Travelers Insurance Company, the insurance carrier of his employer, the Jewel Cotton Mills, on account of the injuries referred to in his original complaint, and further alleged that six months had passed from the date of the injury to the institution of this action. Whereupon, the defendant North Carolina Railroad Company demurred to the plaintiff's complaint and supplemental complaint for that it appeared from the face thereof that there is a defect in parties plaintiff, in that this action is not instituted by the plaintiff in his own name and that of his employer, or employer's insurance carrier.

This demurrer calls for a construction of a sentence in section 1 chapter 449, Public Laws of 1933, being an act to amend chapter 120, Public Laws of 1929, known as "The Workmen's Compensation Act," with relation to settlements in cases involving third parties. This act is brought forward in North Carolina Code of 1935 (Michie) as section 8081 (r), and the particular sentence that we are called upon by the demurrer to construe reads as follows ""If, however, the employer does not commence such action within six months from the date of such injury or death, the employee, or his personal representative, shall thereafter have the right to bring the action in his own name, and the employer, and any amount recovered shall be paid...