Winslow v. Carolina Conference Ass'n of Seventh Day Adventists
| Decision Date | 19 May 1937 |
| Docket Number | 240. |
| Citation | 191 S.E. 403,211 N.C. 571 |
| Parties | WINSLOW v. CAROLINA CONFERENCE ASS'N OF SEVENTH DAY ADVENTISTS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; W. C. Harris, Judge.
Proceeding under the Workmen's Compensation Act by Grover C Winslow, Jr., claimant, opposed by the Carolina Conference Association of the Seventh Day Adventists, employer, and the Lumbermen's Mutual Casualty Company, insurance carrier. From a judgment for claimant on appeal from an award of the Industrial Commission denying compensation, the insurance carrier appeals.
Reversed.
This is a proceeding for compensation under the provisions of the North Carolina Workmen's Compensation Act (Code 1935, § 8081 (h) et seq.) for an injury by accident arising out of and in the course of the employment of the plaintiff by the defendant Carolina Conference Association of the Seventh Day Adventists. The defendant Lumbermen's Mutual Casualty Company was the insurance carrier of its codefendant at the date of the accident. The accident and resulting injury to the plaintiff occurred on June 4, 1934. The first report of the accident was filed with the North Carolina Industrial Commission by the defendants on June 28, 1935. No claim for compensation had been filed with the Industrial Commission by the plaintiff prior to that date.
The proceeding was begun before the North Carolina Industrial Commission. Thereafter, on December 3, 1935, the Industrial Commission received from the plaintiff an application, in writing, for a hearing of the proceeding. Pursuant to said application, and after due notice to all parties, the proceeding was heard by Commissioner Buren Jurney at Goldsboro, N. C., on March 24, 1936. On the findings of fact and conclusions of law made by Commissioner Buren Jurney, an award was made in the proceeding on June 2, 1936. At the request of the defendants, duly made as provided by statute this award was reviewed by the full commission on September 3, 1936. An award was made by the full commission on October 16, 1936. The findings of fact, conclusions of law, and award of the full commission are as follows:
"The full commission directs that the findings of fact conclusions of law, and award of Commissioner Buren Jurney be stricken out and that there be substituted in lieu thereof the following:
Findings of Fact.
1. The parties to this proceeding are bound by the provisions of the North Carolina Workmen's Compensation Act. The Lumbermen's Mutual Casualty Company is the insurance carrier of the defendant employer, Carolina Conference Association of the Seventh Day Adventists.
2. The plaintiff, Grover C. Winslow, Jr., suffered an injury by accident arising out of and in the course of his employment by the defendant employer on June 4, 1934, resulting in a long period of temporary total disability, and in all likelihood resulting also in some permanent disability.
3. The defendant employer had notice of the accident and resulting injury suffered by the plaintiff employee immediately after the occurrence of the same. The defendant insurance carrier, however, had no notice of the accident and resulting injury for some eleven months after the occurrence of the same.
4. No report of the accident and the resulting injury suffered by the plaintiff employee was filed with the Industrial Commission until after the expiration of one year from the date of the accident and resulting injury.
5. A report of the accident and the resulting injury suffered by the plaintiff was made by the defendant employer to the defendant insurance carrier some seven or eight days before the expiration of one year from the date of the accident and resulting injury.
6. A claim for compensation for his injury was filed with the Industrial Commission by the plaintiff on December 3, 1935, more than one year after the date of the accident and his resulting injury.
7. The defendant insurance carrier received a report of the accident from the defendant employer on form 19, as approved by the Industrial Commission, on May 28, 1935. The defendant employer talked with the defendant insurance carrier for the first time on May 17, 1935.
Conclusions of Law.
The provisions of section 24 of the North Carolina Workmen's Compensation Act, as amended (N.C.Code of 1935, § 8081(ff), are mandatory, and no claim having been filed with the Industrial Commission in this proceeding within one year from the date of the accident, and the resulting injury suffered by the plaintiff, unless something appears to change the result, the claim of the plaintiff for compensation is forever barred. Wray v. Woolen Mills Co., 205 N.C. 782, 172 S.E. 487.
Whether the provision of section 24 is a condition annexed to and forming a part of the right to maintain a claim for compensation, or is a statute of limitations, has not, so far as we are aware, been finally determined by the courts of this state, and we will not go into a discussion of that subject at this time.
If, however, compliance with section 24 be considered as a condition annexed to and forming a part of the right to maintain a claim for compensation, it must be borne in mind, that such right did not exist at common law and exists solely by virtue of the Workmen's Compensation Act, and is analogous to C.S.§ 160, giving a cause of action for wrongful death. In that case, the effect of section 24 would be determined by decisions of the courts of this state as to the effect of C.S. § 160, by virtue of which an action to recover damages for wrongful death may be maintained only if begun within one year from the date of the death. Otherwise, there is no right of action.
There is a clear distinction between a statute conferring a right, with a condition annexed to and forming a part of the right, and a statute of limitation which affects the remedy only. The former is not subject to disabilities and excuses which are applicable to an ordinary statute of limitation, and is not affected even by fraud. 37 Corpus Juris, § 5, p. 686; Taylor v. Iron & Coal Co., 94 N.C. 525; Best v. Kinston, 106 N.C. 205, 10 S.E. 997; Hanie v. Penland, 193 N.C. 800, 138 S.E. 165; Curlee v. Power Co., 205 N.C. 644, 172 S.E. 329.
If the provisions of section 24 of the Workmen's Compensation Act be considered a statute of limitation, nothing else appearing, and no claim having been filed with the Industrial Commission within one year from the date of the accident, the right of the plaintiff to proceed under the provisions of the Workmen's Compensation Act is barred. However, the plaintiff contends that the carrier defendant is by its act and conduct, estopped to plead the provisions of section 24, but under the facts as found, we do not concur in this contention. There was no express agreement on the part of the carrier defendant not to plead the statute of limitation, nor was there anything in the acts or conduct of the carrier or employer, or any of their agents, which would in our opinion make a plea of the statute of limitation inequitable. Wilson v. Clement Co., 207 N.C. 541, 177 S.E. 797.
For the reasons stated, we are of the opinion that any right which the plaintiff may have had to compensation is forever barred by the provisions of section 24 of the North Carolina Workmen's Compensation Act, and that an award of compensation can not be made in this proceeding by the North Carolina Industrial Commission. The claim is therefore denied.
There seems to be much merit in the claim for compensation in this case and it is unfortunate that the plaintiff has slept on his rights."
The plaintiff appealed from the award of the full commission to the superior court of Wayne county.
In apt time, the defendant Lumbermen's Mutual Casualty Company entered a special appearance in the superior court of Wayne county and moved that the appeal be dismissed, on grounds set out in its motion which was in writing. The motion was heard at January term, 1937, of said court, when an order was made denying the motion, as follows:
"This cause coming on to be heard at January term, 1937, of the superior court of Wayne county, before his honor, W. C. Harris, judge, upon the special appearance and motion to dismiss plaintiff's appeal from the award of the North Carolina Industrial Commission, denying compensation in this proceeding, of the defendant Lumbermen's Mutual Casualty Company, through its attorneys, Ruark & Ruark, and being heard, the court finds the following facts:
1. The award of the North Carolina Industrial Commission, from which this appeal was taken, was promulgated by the said Industrial Commission on October 16, 1936.
2. Said award was forwarded to Messrs. Langston, Allen & Taylor, attorneys for the plaintiff, Grover C. Winslow, Jr., by registered mail and was delivered to the said Langston, Allen & Taylor on October 17, 1936.
3. Notice of appeal from said award was first served on defendant Lumbermen's Mutual Casualty Company on October 31, 1936.
4. The record of appeal as certified by the Industrial Commission was docketed in the superior court of Wayne county on December 12, 1936.
5. Service of the notice of appeal was accepted and further notice and all time waived on November 9, 1936, by the defendant Carolina Conference Association of the Seventh Day Adventists.
6. The first term of the superior court of Wayne county subsequent to the award of the North Carolina Industrial Commission in this proceeding from which the plaintiff appealed to said court, convened on November 30, 1936, same being a two weeks term for the trial of both criminal and civil actions.
7. Before the judgment in this appeal was signed, but after the court had announced at the conclusion of the argument on the motion to dismiss, that it would...
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