Whitehead & Anderson v. Branch
| Decision Date | 10 December 1941 |
| Docket Number | 677. |
| Citation | 17 S.E.2d 637,220 N.C. 507 |
| Parties | WHITEHEAD & ANDERSON, Inc., et al. v. BRANCH et al. |
| Court | North Carolina Supreme Court |
Plaintiffs employer and insurance carrier respectively, instituted action against the defendants as independent tort-feasors to recover damages for the wrongful death of Bonnie Taylor, an employee. It was alleged that plaintiff insurer had paid the compensation awarded under the Workmen's Compensation Act for the injury and death of the employee.
Upon the facts set out in the pleadings, the defendants moved to dismiss the action on the ground that the action, being for damages for wrongful death, could be brought only by the administrator of Bonnie Taylor, and that the plaintiffs had no legal capacity to maintain the suit. The trial judge allowed the motion, being of opinion that under C.S. § 160 the plaintiffs alone could not maintain the action. From judgment dismissing the action, plaintiffs appealed.
Jones & Smathers, of Charlotte, and Johnson & Timberlake of Lumberton, for plaintiffs, appellants.
Dameron & Young, of Burlington, and McLean & Stacy, of Lumberton, for defendants, appellees.
The single question presented by this appeal is whether the insurance carrier and the employer, under the Workmen's Compensation Act, may maintain an action in their own names, alone, against an independent tort-feasor for the wrongful death of an employee where compensation has been paid or liability therefor assumed by the insurance carrier. Must the suit be brought by the administrator of the employee whose death is alleged to have been caused by the negligence of third parties?
The facts pertinent to this question are not controverted. Bonnie Taylor, an employee of plaintiff Whitehead & Anderson, received a fatal injury by accident arising out of and in the course of his employment. Compensation was awarded to his dependents by the Industrial Commission, under the Workmen's Compensation Act, and this was paid by the employer's insurance carrier. The administrator of the deceased employee brought suit against the defendants for damages for the wrongful death of his intestate, and recovered a judgment therefor in the Superior Court, which judgment the defendants have paid in full. The present action, in the names of the insurance carrier and the employer, was instituted within six months after the death of Bonnie Taylor.
The following provision is contained in the Workmen's Compensation Act, chap. 449, Public Laws 1933, Michie's Code section 8081(r): "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 rights and duties of the employer, and may enforce any such rights in the name of the injured employee or his personal representative." It was said in Thompson v. Virginia & C. S. R. Co., 216 N.C. 554, 6 S.E.2d 38, referring to this statute, that the rights and remedies granted by the Act to an employee to secure compensation for an injury by accident, as against his employer, were exclusive, but that the provision making the remedy exclusive did not appear in the clause relating to suits against third persons. This statement of the law was cited with approval in Mack v. Marshall Field & Co., 217 N.C. 55, 6 S.E.2d 889.
The right to recover damages for the death of a human being caused by the wrongful or negligent act of another did not exist at common law, and is altogether governed by statute. The right of action in this state is conferred by C.S. § 160 and the suit must be begun and prosecuted in strict accordance with the provisions of this statute. Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 68 A.L.R. 210; Brown v. Southern R. Co., 202 N.C. 256, 162 S.E. 613. There is nothing in the North Carolina Workmen's Compensation Act which has the effect of amending or changing this established rule when recovery is sought against an independent tort-feasor for the wrongful death of an employee subject to the provisions of the Act. Chap. 120, Public Laws 1929; Chap. 449, Public Laws 1933. The reference in the statute to the right of subrogation accruing to the insurance carrier upon payment of the compensation awarded is coupled with the designation that the enforcement of such right be in the name of the injured employee or his personal...
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