Southerland v. Harrell

• Decision Date: 24 May 1933
• Docket Number: No. 207.,207.
• Citation: 169 S.E. 423,204 N. C. 675
• Court: North Carolina Supreme Court
• Parties: SOUTHERLAND. v. HARRELL et al.

204 N. C. 675

169 S.E. 423

SOUTHERLAND.

v.HARRELL et al.

No. 207.

Supreme Court of North Carolina.

May 24, 1933.

Appeal from Superior Court, Duplin County; Cranmer, Judge.

Action by Earleene J. Southerland, administratrix of I. B. Southerland, deceased, against J. A Harrell and another. From a judgment of dismissal, plaintiff appeals.

Reversed.

This is an action to recover damages for the wrongful death of plaintiffs intestate. The action was begun in the superior court of Duplin county on February 23, 1932, and was heard at the August term, 1932, of said court, on the pleadings.

It is alleged in the complaint that at thedate of his injuries and resulting death, to wit: March 15, 1931, plaintiff's intestate was an employee of the defendant the Standard Oil Company of New Jersey, and was engaged in the performance of his duties as such employee in this state; that said defendant is a corporation, with one of its principal offices in the city of Charlotte in this state; and that the death of plaintiff's intestate was caused by the negligence of said defendant in furnishing for his use a defective truck, and also by the negligence of the defendant J. A. Harrell, an employee of his codefendant, who was superior in authority to plaintiff's intestate, in the operation of said truck. On the cause of action alleged in the complaint, plaintiff demands judgment that she recover of the defendants the sum of $50,000, as damages for the wrongful death of her intestate.

Both defendants in apt time filed pleas to the jurisdiction of the court, in which they alleged that at the date of the injuries and death of plaintiff's intestate, the defendant the Standard Oil Company of New Jersey had in its employment in this state more than five employees, and was, 'therefore, subject to the provisions of the North Carolina Workmen's Compensation Act (Pub. Laws 1929, c. 120), with respect to the matters and things alleged in the complaint as the cause of action on which plaintiff demands judgment in this action. Each defendant contended that the North Carolina Industrial Commission has exclusive jurisdiction of the claim of plaintiff against the defendants on account of the death of her intestate, and that for this reason, the superior court of Duplin county has no jurisdiction of the cause of action alleged in the complaint. Both defendants demanded judgment that the action be dismissed. The pleas were sustained, and the action dismissed.

From judgment dismissing the action as to both defendants, plaintiff appealed to the Supreme Court.

N. B. Boney, of Kenansville, and R. D. Johnson and J. T. Gresham, Jr., both of Warsaw, for appellant.

Rountree, Hackler & Rountree, of Wilmington, for defendant Standard Oil Co. of New Jersey.

CONNOR, Justice.

The pleas to the jurisdiction of the court filed by the defendants in this action are, in effect, demurrers to the complaint on the ground that the...