Smith v. Allied Exterminators, Inc.
| Decision Date | 10 November 1971 |
| Docket Number | No. 50,50 |
| Citation | 279 N.C. 583,184 S.E.2d 296 |
| Parties | Hallie SMITH, Mother, et al., Employee-Plaintiff, v. ALLIED EXTERMINATORS, INC., Employer and Bituminous Casualty Corporation, Carrier Defendants. |
| Court | North Carolina Supreme Court |
Powe, Porter & Alphin, by Willis P. Whichard, Durham, for plaintiff.
Dupree, Weaver, Horton, Cockman & Alvis, by Walter L. Horton, Jr., Raleigh, for defendants.
G.S. § 97--83 provides that if the employer and the dependents of the employee fail to reach an agreement in regard to compensation payable under the Workmen's Compensation Act within fourteen days after the 'employee' (obviously a misprint intended to read 'employer') has knowledge of the death, either party may make application to the Industrial Commission for a hearing in regard to matters at issue, and for a ruling thereon, whereupon the Commission shall set the date for a hearing and notify the parties thereof. G.S. § 97--84 provides that the Commission shall hear the parties at issue and determine the dispute.
In the present case, no agreement having been reached within the specified time and the carrier having made such application to the Commission, the Commission set the matter for hearing and gave notice to the parties, including the father. The Commission, at such hearing, had jurisdiction to determine the rights of the father and mother, respectively, to benefits under the Act by reason of the death of their son. See, Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252. Thus, the father is not barred from participation in benefits payable under the Act by reason of his failure to file a claim therefor, but he is barred by the Commission's determination that he is not entitled to such benefits by reason of his abandonment of the deceased employee during the latter's minority, unless that determination be error:
G.S. § 97--38 provides:
'If death results approximately from the accident * * * the employer shall pay or cause to be paid, subject to the provisions of the other sections of this article, weekly payments of compensation equal to sixty percent (60%) of the average weekly wages of the deceased employee at the time of the accident * * * for a period of three hundred and fifty weeks * * * to the person or persons entitled thereto as follows: * * *.'
G.S. § 97--40 provides:
'Subject to the provisions of G.S. 97--38, if the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under G.S. 97--38 to whole dependents shall be commuted to its present value and paid in a lump sum to the next of kin As herein defined. For purposes of this section and G.S. 97--38, 'next of kin' shall include only child, father, mother, brother or sister of the deceased employee. For all such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under this section, the order of priority among them shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate. * * * (Emphasis added.)
'If the deceased employee leaves neither whole dependents, partial dependents, nor next of kin as hereinabove defined, then on compensation shall be due or payable on account of the death of the deceased employee, except that the employee shall pay or cause to be paid the burial expenses of the deceased employee not exceeding five hundred dollars ($500.00) to the person or persons entitled thereto.'
In the present case, it is stipulated, and the Commission has found that the deceased employee left no one who was dependent upon him, wholly or partially. Thus, G.S. § 97--40 determines the person or persons entitled to receive the death benefits provided in the Act, but the amount payable to the person or persons entitled thereto is determined by G.S. § 97--38, commuted...
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...a claim for death benefits within the two year jurisdictional requirement of G.S. 97-24. We disagree. In Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296 (1971), the Supreme Court held that a father's right to participate in his son's death benefits was not barred by his fa......
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...child. Williford, 288 N.C. 506, 219 S.E.2d 220. This Court in Williford, relying in part upon the logic of Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296 (1971), that when the Legislature, in G.S. 28-173, provided that the proceeds of an action for wrongful death "shall b......
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Stevenson v. City of Durham
...eighteen years of age. After the Court of Appeals filed its decision in this case, this Court, in the case of Smith v. Allied Exterminators, 279 N.C. 583, 184 S.E.2d 296, in construing G.S. § 97--38 and G.S. § 97--40, '. . . Thus, G.S. § 97--40 determines the person or persons entitled to r......
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Perdue v. Daniel Intern. Inc., 8210IC27
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