McCarley v. Council

• Citation: 171 S.E. 323,205 N.C. 370
• Decision Date: 01 November 1933
• Docket Number: 265.
• Parties: McCARLEY v. COUNCIL et al.
• Court: North Carolina Supreme Court

171 S.E. 323

205 N.C. 370

McCARLEY v. COUNCIL et al.

No. 265.

Supreme Court of North Carolina

November 1, 1933

Appeal from Superior Court, Cleveland County; Finley, Judge.

Action by R. J. McCarley against C. K. Council and another. From an order striking part of defendants' answer, defendants appeal.

Reversed.

This is an action to recover damages for personal injuries suffered by the plaintiff, and resulting from a collision, which occurred on January 27, 1932, between an automobile in which the plaintiff was riding as a passenger and an automobile owned by the defendant I. J. Sutton, and driven by the defendant C. K. Council.

It is alleged in the complaint that the automobile in which the defendants were riding, at the time of the collision, was under their joint control, and that the defendants at the time were engaged in a joint enterprise. It is further alleged that the collision between said automobiles, with the resulting injuries to the plaintiff, was caused solely and proximately by the negligence of the defendants, as specifically alleged therein. On the cause of action alleged in the complaint, the plaintiff prays judgment that he recover of the defendants the sum of $15,000, the amount of his damages.

In their answer to the complaint, the defendants deny all the allegations therein, which constitute the cause of action alleged in the complaint. As a further defense to the cause of action alleged in the complaint, and as a bar to plaintiff's recovery thereon in this action, the defendants allege:

"1. That on the 27th day of January, 1932, and for a considerable length of time prior thereto, the plaintiff was employed by Stewart Brothers Cotton Company.

"2. That prior to the 27th day of January, 1932, the plaintiff and his employer, Stewart Brothers Cotton Company, had duly elected to accept and be governed by all the provisions of the laws of the State of North Carolina, known as the 'Workmen's Compensation Laws of North Carolina.'

"3. That on the 27th day of January, 1932, the plaintiff and his employer, Stewart Brothers Cotton Company, had duly complied with the provisions and requirements of the Workmen's Compensation Laws of North Carolina, and were operating under its terms and provisions, and were bound thereby.

"4. That prior to the 27th day of January, 1932, Stewart Brothers Company, the employer of the plaintiff, had procured a policy of insurance from or in the London Accident & Guarantee Company, as required by the Workmen's Compensation Laws of the State of North Carolina, and that said London Accident & Guarantee Company was prior to as well as on the 27th day of January, 1932 the insurance carrier for Stewart Brothers Cotton Company under the said Workmen's Compensation Act.

"5. That on the 27th day of January, 1932, and at the time and place and on the occasion mentioned in the complaint, the plaintiff R. J. McCarley, was engaged in the business of his employer, Stewart Brothers Cotton Company.

"6. That subsequent to January 27, 1932, the plaintiff, R. J. McCarley, and his employer, Stewart Brothers Cotton Company, and the London Accident & Guarantee Company, the insurance carrier for Stewart Brothers Cotton Company, under the North Carolina Workmen's Compensation Act (Pub. Laws 1929, c. 120, as amended) duly entered into an agreement under and pursuant to the provisions of the North Carolina Workmen's Compensation Act, by the terms of which the plaintiff agreed to accept and the said London Accident & Guarantee Company agreed to pay to the plaintiff compensation and medical and other expenses as required and provided by said North Carolina Workmen's Compensation Act.

"7. That thereafter, to-wit: on the 5th day of July, 1932, a hearing was held under and pursuant to the provisions of the North Carolina Workmen's Compensation Act before J. Dewey Dorsett, Commissioner, at Troy, N. C., and that thereafter, to-wit: on the 25th day of October, 1932, an award was duly assessed by the North Carolina Industrial Commission directing that compensation payments be made according to the agreement theretofore entered into between the plaintiff, his employer, Stewart Brothers Cotton Company, and its insurance carrier, London Accident & Guarantee Company.

"8. That neither the plaintiff, nor his employer, Stewart Brothers Cotton Company, nor its insurance carrier, London Accident & Guarantee Company, appealed from the aforesaid award of the North Carolina Industrial Commission, and that the time within which an appeal can be taken or perfected has expired, and that the said award is therefore final and binding upon the plaintiff, his employer and the insurance carrier, the London Accident & Guarantee Company.

"9. The defendants are advised, informed and believe and upon such information and belief allege that the London Accident & Guarantee Company has paid compensation to the plaintiff, and the plaintiff has accepted compensation from the said Company under and pursuant to the terms, conditions and provisions of the aforesaid award, and the Workmen's Compensation Law of the State of North Carolina.

"10. That under the provisions of the North Carolina Workmen's Compensation Law, and particularly section 11 thereof (Pub. Laws 1929, c. 120) the rights and remedies therein granted to an employee where he and his employer have accepted the provisions of said Act, respectively to pay and accept compensation on account of personal injury or death by accident excludes all other rights and remedies of such employees, or their personal representatives, and the acceptance of an award under the said Act is a complete bar to any alternative or further proceeding at common law or otherwise, and that the plaintiff by accepting the aforesaid award under the North Carolina Workmen's Compensation Act has thereby waived any common law or other right which he might otherwise have had to institute and to prosecute an action to recover damages for his alleged injuries, and is forever barred from prosecuting any action for said alleged injuries against these defendants, or either of them.

"11. That the acceptance by the plaintiff of the aforesaid award under the North Carolina Workmen's Compensation Act for compensation for the injury or injuries alleged to have been sustained by the plaintiff at the time and place and on the occasion mentioned in the complaint operated as an assignment to his employer or its insurance carrier, the London Accident & Guarantee Company, of all rights of the plaintiff, if any he had, to recover damages against the defendants, or either of them, on account of said injuries, and that his said employer, or its insurance carrier, the London Accident & Guarantee Company, were by operation of law by said award, and their compliance therewith, subrogated to all of the rights, if any the plaintiff had, to institute or prosecute any action or actions against the defendants or either of them, for or on account of injuries alleged by the

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