Ivey v. North Carolina Prison Dept.

• Decision Date: 10 June 1960
• Docket Number: No. 740,740
• Parties: Charles M. IVEY, Jr., Administrator of the Estate of Cecll G. King, Deceased, v. NORTH CAROLINA PRISON DEPARTMENT.
• Court: North Carolina Supreme Court

Page 812

114 S.E.2d 812

252 N.C. 615

Charles M. IVEY, Jr., Administrator of the Estate of Cecll G. King, Deceased, v. NORTH CAROLINA PRISON DEPARTMENT.

No. 740

Supreme Court of North Carolina.

June 10, 1960

Martin & Whitley, by Robert M. Martin, High Point, for plaintiff, appellant.

T. W. Bruton, Atty. Gen., Bernard A. Harrell, Trial Atty., Raleigh, for State.

HIGGINS, Justice.

The General Assembly, by Article 31 of Chapter 143, General Statutes, has constituted the North Carolina Industrial Commission a court with jurisdiction to hear and pass on tort claims against the State Board of Education, State Highway Commission, and all other departments, institutions and agencies of the State. The State is made liable up to $10,000 for the negligent act of its officers, employees and servants if under the same conditions a private person would be liable. Turner v. Gastonia City Board of Education, 250 N.C. 456, 109 S.E.2d 211; Lawson v. North Carolina State Highway & Public Works Commission, 248 N.C. 276, 103 S.E.2d 366; Alliance Co. v. State Hospital, 241 N.C. 329 85 S.E.2d 386; Lyon & Sons, Inc. v. N.C. State Board of Education, 238 N.C. 24, 76 S.E.2d 553.

The Industrial Commission's findings of fact established that the plaintiff's intestate, a prisoner, while performing an assigned task, met his death as result of the negligent act of Edward Wright, an employee of the State, while acting within the scope of his employment. Thus the findings established the plaintiff's right to assert this claim on behalf of his intestate unless some other provision of law withdraws the right.

The plaintiff contends that nowhere in the law is the right to maintain the tort action withdrawn. On the other hand, the defendant contends that G.S. § 97-10 and G.S. § 97-13, subsection (c) as amended, provide a remedy under the Workmen's Compensation Act which is exclusive. G.S. § 97-10 grants rights and remedies where the employer and employee have accepted the provisions of the Workmen's Compensation Act. G.S. § 97-13 exempts from the provisions of the Workmen's Compensation Act the following: (a) railroad employees; (b) casual employees, domestic servants, farm laborers, Federal government employees, employers of less than five employees; (c) 'Prisoners.--This article (Workmen's Compensation) shall not apply to prisoners being worked by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the State Prison Department shall suffer accidental injury arising out of and in the course of the employment to which he has been assigned, if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this article, then such discharged prisoner may (emphasis added) have the benefit of this article by applying to the Industrial Commissioin as any other employee; provided, such application is made within twelve months from the date of discharge; and provided, further, * * (here follow provisions not here material) and no award other than burial expenses shall be made for any prisoner whose accident results in death. * * *' The foregoing provisions of G.S. § 97-10 and G.S. § 97-13 were in effect when the Tort Claims Act (G.S. § 143-291) was passed in 1951, repealing all inconsistent provisions of law.

In 1957, Public Laws, Ch. 809, amended G.S. § 97-13, subsection (c) by the following: 'The provisions of G.S. 97-10 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers.' As stated by Bobbitt, J., in Lawson v. North Carolina State Highway Commission, 248 N.C. 276, 103 S.E.2d 366, 369, 'G.S. 97-13(c) conferred limited rights upon prisoners in a special classification, to wit, those assigned to work under the supervision of the State Highway & Public Works Commission, in the event they suffered 'accidental injury arising out of and in the course of employment to which * * * assigned.' No provision was made for other prisoners.

'With knowledge, actual or presumed, of the limited rights theretofore conferred upon prisoners in this special classification, the General Assembly of 1951 enacted the Tort Claims Act. * * * It did not except any prisoners from its provisions. In Gould v. North Carolina State Highway Commission, 245 N.C. 350, 95 S.E.2d 910, this Court held that a prisoner not in said special classification was entitled to recovery under the Tort Claims Act.' The case then raised the question whether the 1957 amendment to G.S. § 97-13(c) denied to prisoners on assigned tasks rights conferred by the Tort Claims Act.

As stated by Justice Bobbitt in the Lawson case, G.S. § 97-13(c) is not free from ambiguity. The purpose and meaning of the 1957 amendment were not directly involved in that case. Here it is involved. Any inconsistencies between subsection (c) before the amendment and the Tort Claims Act were repealed by the latter. The question now is whether the 1957 amendment withdraws the plaintiff's right to assert a tort claim.

If the Legislature intended to withdraw altogether a prisoner's right to pursue a tort claim, the logical procedure would be by amendment to the section of the Tort Claims Act which gave the right. No valid reason is suggested why the withdrawal, if such were intended, should be by an amendment tucked away in a jumbled and confusing subsection which is an exception followed by two provisos to the section of the Workmen's Compensation Act, entitled, 'Exceptions from provisions of article.' Interpretation of § 97-13 subsection (c), originally and after the amendment, presents a problem in legal quadratics. The amendment makes no reference to the Tort Claims Act. 'Repeals by implication are not favored by the law and will not be indulged if there is any other reasonable construction.' Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 68 S.E.2d 433, 438. 'The presumption is against the intention to repeal where express terms are not used, and will not be indulged if by any other reasonable construction the statutes may be reconciled and declared to be operative without repugnance. ' To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed.' ' Spaugh v. City of Charlotte, 239 N.C. 149, 79 S.E.2d 748, 755; McLean v. Durham County Board of Elections, 222 N.C. 6, 21 S.E.2d 842; Kelly v. Hunsucker, 211 N.C. 153, 189 S.E. 664; Story v. Board of Commissioners, 184 N.C. 336, 114 S.E. 493.

Actually, by its own terms, the 1957 amendment applies only to prisoners and discharged prisoners entitled to compensation under this subsection. The limitation in the amendment that it shall apply to prisoners and discharged prisoners entitled to compensation does not require--even if it permits--the interpretation placed upon it by the Prison Department that the payment of burial expenses constitutes the payment of compensation. The term compensation as used in the Workmen's Compensation Act is defined in G.S. § 97-2(11): 'When used in this article unless the context otherwise requires * * * means the money allowance payable to an employee or to his dependents as provided for in this article and includes funeral benefits provided herein.' As defined by this Court in Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865, 867: "Compensation', in the connection in which it is used in this Act means money relief afforded according to a scale established and for the persons designated in the Act. ' In Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, 113, the Court said: 'Compensation is defined in our statutes as the money allowance payable to an employee or his dependents, including funeral benefits.'

To be sure, the definition includes burial expenses, but it takes the whole to constitute compensation and not one of its parts. A vest is a part of a suit of clothes, but a vest cannot be called a suit. Surely compensation for wrongful death involves more than the burial of the body.

The rule against repeal by implication requires us to hold the plaintiff's right to have the tort claim heard and passed on has not been withdrawn. If the Legislature intended to exclude prisoners, all it had to do was pass a simple amendment to the Tort Claims Act saying, 'prisoners assigned by the courts to work under the State Prison Department are excluded.' Intention to withdraw a prisoner's right to assert a tort claim cannot be presumed as a result of the amendment to the Workmen's Compensation Act in its present form and setting.

The claimant administrator is entitled to have the North Carolina Industrial Commission hear and pass on his tort claim against the Prison Department. The judgment of the Superior Court sustaining the demurrer is

Reversed.

RODMAN, Justice (dissenting).

To determine plaintiff's right to recover, it is necessary, I think, to see what rights he possessed at common law and how those rights may have been enlarged by statute.

At common law an employee who was negligently injured by another had a right of action against the party causing the injury. The common law held an employer liable for the acts of his employees when done in the course of their employment. Hence when an employee was negligently injured by another employee, not a fellow servant, he had a right of action against the employee who inflicted the injury or against the employer or against both.

The rule of respondeat superior did not apply when the State or one of its agencies was the employer. The doctrine of governmental immunity forbade the injured party to sue. This rule of governmental immunity was applied in Clodfelter v. State, 86 N.C. 51, to defeat recovery by a convict who was injured by the negligence of his...