Roberts v. City Ice & Fuel Co.

• Decision Date: 29 April 1936
• Docket Number: 458.
• Citation: 185 S.E. 438,210 N.C. 17
• Parties: ROBERTS et al. v. CITY ICE & FUEL CO. et al.
• Court: North Carolina Supreme Court

185 S.E. 438

210 N.C. 17

ROBERTS et al. v. CITY ICE & FUEL CO. et al.

No. 458.

Supreme Court of North Carolina

April 29, 1936

Appeal from Superior Court, Wake County; Barnhill, Judge.

Proceeding under the Workmen's Compensation Act by Vera Sparrow Roberts, administratrix of D. I. Roberts, deceased, claimant opposed by the City Ice & Fuel Company, employer, and Northwestern Casualty & Surety Company and Union Indemnity Company, insurance carriers. From a judgment affirming an order of the Industrial Commission holding the employer liable under original award after the insolvency of the Union Indemnity Company, insurance carrier, the employer appeals.

Affirmed.

This case arose under the act known as the North Carolina Workmen's Compensation Act (Pub.Laws 1929, c. 120). The facts as they appear from the findings and opinion of the North Carolina Industrial Commission are substantially these:

D. I Roberts, an employee of defendant ice company, was accidentally killed while in the service of the ice company as result of coming in contact with live tension wires of the Carolina Power & Light Company. Defendant ice company was insured against liability by the Northwestern Casualty & Surety Company, whose business was afterwards taken over by the New York Indemnity Company, and the liability of the latter was afterwards assumed by Union Indemnity Company. The New York Indemnity Company was represented by Thomas Creekmore, attorney of Raleigh. On May 29, 1930, an award was made by the North Carolina Industrial Commission against the ice company and its insurance carrier for the payment of compensation to the plaintiff widow and four infant children at the rate of $15.72 per week for 350 weeks, plus $200 burial expenses. On November 22, 1930, the New York Indemnity Company, through its attorneys Thomas Creekmore and Murray Allen, gave notice to the Carolina Power & Light Company that the award had been made, and that under the subrogation provision of the Workmen's Compensation Act it had elected to institute suit in the name of the plaintiff, Vera Sparrow Roberts, administratrix of D. I. Roberts, against Carolina Power & Light Company for the purpose of recovering damages for the death of D. I. Roberts. Suit in the name of plaintiff administratrix against Carolina Power & Light Company was accordingly instituted and resulted in a consent judgment and recovery of $7,250. Judgment was consented to by plaintiff's attorney J. C. Ray, and by Messrs. Creekmore and Allen, attorneys for New York Indemnity Company and was approved by the North Carolina Industrial Commission. The Carolina Power & Light Company paid the judgment by check payable to the clerk of the superior court of Wake county, and the check was indorsed by the clerk to the order of Thos. Creekmore, appearing as counsel for plaintiff in that suit. The New York Indemnity Company or its successor, Union Indemnity Company, under the order of the Industrial Commission paid to the plaintiff $866.74, the excess over the amount due under the award, and paid $250 to her attorney, and retained the remainder for the reimbursement of itself for amounts paid and to be paid under the award.

The New York Indemnity Company or Union Indemnity Company (which had assumed the liability of the former) continued to make payments to plaintiff on behalf or herself and her infant children in accordance with the award until December 1932, at which time the Union Indemnity Company went into receivership. At that time there was a balance due under the award of $3,348.36, or payments for 203 weeks. No additional payments have since been made. No notice of the suit nor of the settlement with the Carolina Power & Light Company was given the ice company.

After the discontinuance of payments, the plaintiff, on behalf of herself and children, brought the matter to the attention of the Industrial Commission, and an order was made by the commission holding that the defendant ice company, the employer, was liable under the original award and that it was entitled to credit thereon only for compensation which had been actually paid and for funeral expenses paid.

In the findings and opinion of the North Carolina Industrial Commission the following portions of the Workmen's Compensation Act are quoted:

Any amount collected by the employer under the provisions of f this section in excess of the amount paid by the employer, or for which he is liable, shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less such amounts as are paid by the employer for reasonable expenses and attorney's fees when approved by the Commission. * * *

When any employer is insured against liability for compensation with any insurance carrier, and such insurance carrier shall have paid any compensation for which the employer is liable or shall have assumed the liability of the employer therefor, it shall be subrogated to all the rights and duties of the employer, and may enforce any such rights in its own name or in the name of the injured employee or his personal representative: Provided, however, nothing herein shall be construed as conferring upon insurance carriers any other or further rights than those existing in the employer at the time of the injury to his employee, anything in the policy of insurance to the contrary notwithstanding." Section 11.

Section 67 reads, in part: "Every employer who accepts the provisions of this act relative to the payment of compensation shall insure and keep insured his liability thereunder, * * * or shall furnish to the Industrial Commission satisfactory proof of his financial ability to pay direct the compensation in the amount and manner and when due, as provided for in this act."

Section 68(b) reads, in part: "Any employer required to secure the payment of compensation under this act who refuses or neglects to secure such compensation shall be punished by a fine of ten cents for each employee at the time of the insurance becoming due, but not less than one dollar nor more than fifty dollars for each day of such refusal or neglect, and until the same ceases; and he shall be liable during continuance of such refusal or neglect to an employee either for compensation under this act or at law in the same manner as provided in section 15."

From the order of the North Carolina Industrial Commission holding the employer liable under the original award, the defendant ice company appealed to the superior court, and from judgment of the superior court affirming the findings and order of the Industrial Commission, defendant appealed to this court.

STACY, C.J., dissenting.

Statute giving compensation insurer right of subrogation to rights of insured employer against tort feasor causing employee's death is for benefit of insurer and not intended to impair right of compensation claimant to compensation from the insured employer (Pub.Laws 1929, c. 120).

J. C. Little, of Raleigh, and Morehead & Murdock, of Durham, for appellant.

Bonner D. Sawyer, of Hillsboro, for appellee.

DEVIN Justice.

Two questions are presented here:

(1) Was the employer, under the Workmen's Compensation Act, relieved of liability for the payment of the balance of an award for the benefit of the widow and children of the employee, by reason of the insolvency of the insurance carrier?

(2) Under these circumstances, was the employer discharged of liability by reason of the fact that the insurance carrier brought suit in the name of the administratrix of the employee against a third party and recovered an amount sufficient to pay the award in full,...