Ohlhaver v. Narron

• Decision Date: 29 March 1952
• Docket Number: No. 6382.,6382.
• Citation: 195 F.2d 676
• Parties: OHLHAVER v. NARRON.
• Court: U.S. Court of Appeals — Fourth Circuit

195 F.2d 676 (1952)

OHLHAVER v. NARRON.

No. 6382.

United States Court of Appeals Fourth Circuit.

Argued March 11, 1952.

Decided March 29, 1952.

Cyrus F. Lee, Wilson, N. C. (Gardner, Connor & Lee, Wilson, N. C., on the brief), for appellant.

J. C. Moore, Jr., and S. W. Ruark, Raleigh, N. C. (Robert Ruark, Raleigh, N. C., and L. H. Gibbons, Wilson, N. C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is a civil action instituted in the United States District Court for the Eastern District of North Carolina, seeking damages for personal injuries growing out of an automobile-truck collision, which occurred in Wilson County, North Carolina, on March 2, 1950. Plaintiff was riding in an automobile being operated by William J. Graham, deceased. The complaint alleges that the plaintiff's injuries were caused by the joint and concurring negligence of William J. Graham, deceased, the operator of the automobile in which the plaintiff was riding, and Walter Ronnie Moore, the operator of the truck; and that the defendants are liable to him as joint tort feasors.

The defendant, Talmadge L. Narron, Administrator of William J. Graham, deceased, answered, denying negligence on the part of his intestate and alleging as a second defense that both the plaintiff and Graham were employed by the Merchants Fire Insurance Company of New York; that at the time of the collision both the plaintiff and the said Graham were acting within the course and scope of their mutual employment and such injuries, if any, as the plaintiff sustained were occasioned by accident arising out of and in the course of their mutual employment and that the plaintiff is bound by the Workmen's Compensation Act of the State of New York, McK.Consol.Laws, c. 67, including section 29, subsection 6 thereof, which is as follows:

"The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ."

Further, it was set up in this answer that the plaintiff has filed claim under the Workmen's Compensation Act of New York and has been paid compensation thereunder and that the plaintiff is thereby barred from proceeding against said answering defendant.

Plaintiff in reply denied the allegations of this defendant's second defense and demanded a jury trial on the issues raised by the pleadings. Subsequently, this answering defendant filed a motion for summary judgment based upon his second defense. At the hearing on this motion, he introduced in support thereof the depositions in the record. In opposition, the plaintiff introduced his personal affidavit. The District Court entered summary judgment dismissing the action as to the defendant Administrator. Plaintiff appealed to this Court.

Two questions are presented to us on this appeal: (1) Should the Workmen's Compensation Act of New York be applied by a federal court sitting in North Carolina to define or limit the remedies for torts committed in North Carolina; and (2) If so, is there a substantial question of fact here which requires submission to a jury and thus precludes a summary judgment for defendant. The District Judge answered the first question in the affirmative, the second question in the negative. In each instance, we think he was correct, so the judgment below must be affirmed.

The question of fact is whether plaintiff and Graham, at the time of the accident, were both engaged in the service of their employer and were, therefore, fellow servants. On this point the District Judge said:

"Both plaintiff and Graham were salaried employees of the Merchants Fire Assurance Corporation of New York, a New York Corporation with principal offices in New York. They were in North Carolina attending to the Company\'s business, and the automobile trip in progress at the time of the collision was taken in the interest of the employer\'s business.

"Both Graham and plaintiff had been sent to North Carolina by their employer to further their employer\'s business, and they had attended a hearing before the North Carolina Insurance Commission on the day prior to the accident. At the time of the accident Graham and plaintiff were riding in an automobile furnished to them by their superior, a Vice-President of their employer. * * * At the time of the collision with another vehicle, Graham and plaintiff were en route to Raleigh, North Carolina, from Greenville, North Carolina, where they had travelled for the purpose of permitting plaintiff to make calls on agents of the employer. These facts show that Graham was on the business of the employer at the time he was killed. Admittedly, the plaintiff was on his emloyer\'s business."

There is no suggestion in the record that the automobile, at the time of the accident, was being used for the purely personal concerns of either Graham or the plaintiff and the record discloses ample support for these findings and conclusions of the District Judge.

We think the District Judge, having rightly found that plaintiff and Graham were fellow servants, was further correct in holding that plaintiff, who received benefits under the Workmen's Compensation Act of New York, was barred by that Act from bringing an action in a federal court in North Carolina against Graham, plaintiff's fellow employee.

It is quite clear that the provisions of the New York Act preclude one, accepting benefits under the Act, from bringing an action against a fellow servant. Thus Section 29, Subdivision 6, of this Act, reads:

"The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents,

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