Olakkson, J.
This matter has been fully discussed in Reeves
v.
Parker, Vol. 1, p. 277, Advance Sheets, North Carolina Industrial Commission, opinion by Dorsett, Commissioner. It is there held: (1) Common-law marriage not recognized by either North Carolina or Tennessee: therefore common-law wife not a widow under the act. (2) Under section 40, where deceased leaves no dependents, personal representative entitled to same amount as those wholly dependent,” citing case of Freeman
v.
Motor Company, Vol. 1, p. 283, holding: “Deceased employee leaving no dependents, personal representative entitled to pay
ment of commuted value of .60 per cent of average weekly wages of deceased for 350 weeks less funeral expenses.”
An appeal was taken to tbe full Commission from tbe findings of fact and award, and tbe opinion of Commissioner Dorsett was affirmed and adopted.
Allen, chairman of tbe Commission, says: “It was admitted tbat plaintiff was duly and regularly employed by tbe defendant Parker-Grabam-Sexton, Inc., and tbat tbe accident and death arose out of and in tbe course of bis employment, and tbat bis average weekly wages was $24.78. Upon tbe foregoing, Dorsett, Commissioner, ordered award, providing for tbe payment to Gardner and Alley, administrators, tbe sum of $4,497.32, less burial expenses not to exceed $200.00, tbis being tbe commuted value of $14.87 for three hundred and fifty weeks. . . . Upon tbe question as to tbe right of tbe personal representative to recover wbere-tbere are no dependents, tbis Commission, in Freeman
v.
B. & N. Motor Co.,
et al,
Docket No. 216, has held tbat tbe personal representative is entitled to recover tbe commuted value of sixty per centum of tbe average weekly wages of tbe deceased, less tbe burial expenses not to exceed $200.00.”
We are now called upon to sustain or reverse the. Industrial Commission. We think tbe opinion of tbe Commission should be upheld.
We have to construe two sections of tbe Workman’s Compensation Law, Pub. Laws of 1929, chap. 120, as follows:
“Sec. 40. If tbe deceased employee .leaves no dependents, the employer shall pay to tbe personal representative of tbe deceased tbe commuted amount provided for in section 38 of tbis act, less tbe burial expenses which shall be deducted therefrom.”
“Sec. .38. If death results proximately from tbe accident and within two years thereafter, or while total disability still continues, and within six years after tbe accident, tbe employer shall pay for or cause to be paid, subject, however, to tbe provisions of tbe other sections of tbis act in one of tbe methods hereinafter provided, to tbe dependents of tbe employee, wholly dependent upon bis earnings for support at tbe time of accident, a weekly payment equal to 60 per centum of bis average weekly wages, but not more than eighteen dollars, nor less than seven dollars, a week for a period of three hundred and fifty weeks from tbe date of tbe injury, and burial expenses not exceeding two hundred dollars,” etc.
Tbis is a new act and should be liberally construed to effectuate tbe ■legislative intent to give compensation to workmen.
It was earnestly argued on tbe bearing by defendants tbat tbis act put tbe burden on industry and tbe General Assembly did not intend to provide compensation in those cases where a deceased employee leaves no dependents.
In the Freeman case,
supra,,
at p. 326, opinion by Allen, chairman, says: “It is admitted by counsel for the defendant, and the Commission will take judicial notice of the fact, that the premium rates in North Carolina are based upon the payment to the personal representative in cases of death, where there are no dependents, of sixty per centum of the average weekly wages of the deceased at the time of his death. The rate-making authorities found the words of section 40 as plainly expressive of an intent, and accordingly fixed the rates.”
The defendant, Travelers Insurance Company, having been paid the premium by defendant Parker-Graham-Sexton, Inc., employer, to pay compensation in death cases where there are no dependents, as in the present case, is hardly in a position to complain.
Section 71 of the act, latter part, in reference to the agreement of the insurer, says: “Such agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation enforceable in his name.”
The burden is on industry to repair material used in the operation of its works, and under this act the burden is to take care of the human wrecked or killed, whether having dependents or not, and that is the fine purpose of the act agreed upon by employer and employee. The act provides that the burden is not only to provide compensation for those who have dependents, but also for those who have no dependents. The intent of the act was to give equal rights upon the death of the employee who came within the language of the act, whether he has dependents or not. An employee’s life is of value to dependents, and it is unthinkable that it should not be so to the next of kin.
We quote some of the pertinent sections of the act, showing that the General Assembly unquestionably made provisions that those who did not have dependents that the personal representatives had a cause of action:
Section 4 of the act: “From and after the taking effect of this act every employer and employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation
for personal injury or death by accident arising out of and in the course of the employment,
and shall be bound thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.”
Section 11 of the act, in part: “The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act, respectively, to pay and accept compensation on account of personal injury or death by accident,
shall exclude all other rights and remedies of such employees, his personal representative,
parents, dependents or next of kin, as against employer at common law, or otherwise,
on account of such injury, loss of service, or death:
Provided, however,
that when such employee, Ms personal representative or other person may have a right to recover damages for such injury, loss of service, or death from any person other than such employer, he may institute an action at law against such third person or persons before an award is made under this act, and prosecute the same to its final determination; but either the acceptance of an award hereunder, or the procurement of a judgment in an action at law, shall be a bar to proceeding further with the alternate remedy. . . .
Free access — add to your briefcase to read the full text and ask questions with AI
Olakkson, J.
This matter has been fully discussed in Reeves
v.
Parker, Vol. 1, p. 277, Advance Sheets, North Carolina Industrial Commission, opinion by Dorsett, Commissioner. It is there held: (1) Common-law marriage not recognized by either North Carolina or Tennessee: therefore common-law wife not a widow under the act. (2) Under section 40, where deceased leaves no dependents, personal representative entitled to same amount as those wholly dependent,” citing case of Freeman
v.
Motor Company, Vol. 1, p. 283, holding: “Deceased employee leaving no dependents, personal representative entitled to pay
ment of commuted value of .60 per cent of average weekly wages of deceased for 350 weeks less funeral expenses.”
An appeal was taken to tbe full Commission from tbe findings of fact and award, and tbe opinion of Commissioner Dorsett was affirmed and adopted.
Allen, chairman of tbe Commission, says: “It was admitted tbat plaintiff was duly and regularly employed by tbe defendant Parker-Grabam-Sexton, Inc., and tbat tbe accident and death arose out of and in tbe course of bis employment, and tbat bis average weekly wages was $24.78. Upon tbe foregoing, Dorsett, Commissioner, ordered award, providing for tbe payment to Gardner and Alley, administrators, tbe sum of $4,497.32, less burial expenses not to exceed $200.00, tbis being tbe commuted value of $14.87 for three hundred and fifty weeks. . . . Upon tbe question as to tbe right of tbe personal representative to recover wbere-tbere are no dependents, tbis Commission, in Freeman
v.
B. & N. Motor Co.,
et al,
Docket No. 216, has held tbat tbe personal representative is entitled to recover tbe commuted value of sixty per centum of tbe average weekly wages of tbe deceased, less tbe burial expenses not to exceed $200.00.”
We are now called upon to sustain or reverse the. Industrial Commission. We think tbe opinion of tbe Commission should be upheld.
We have to construe two sections of tbe Workman’s Compensation Law, Pub. Laws of 1929, chap. 120, as follows:
“Sec. 40. If tbe deceased employee .leaves no dependents, the employer shall pay to tbe personal representative of tbe deceased tbe commuted amount provided for in section 38 of tbis act, less tbe burial expenses which shall be deducted therefrom.”
“Sec. .38. If death results proximately from tbe accident and within two years thereafter, or while total disability still continues, and within six years after tbe accident, tbe employer shall pay for or cause to be paid, subject, however, to tbe provisions of tbe other sections of tbis act in one of tbe methods hereinafter provided, to tbe dependents of tbe employee, wholly dependent upon bis earnings for support at tbe time of accident, a weekly payment equal to 60 per centum of bis average weekly wages, but not more than eighteen dollars, nor less than seven dollars, a week for a period of three hundred and fifty weeks from tbe date of tbe injury, and burial expenses not exceeding two hundred dollars,” etc.
Tbis is a new act and should be liberally construed to effectuate tbe ■legislative intent to give compensation to workmen.
It was earnestly argued on tbe bearing by defendants tbat tbis act put tbe burden on industry and tbe General Assembly did not intend to provide compensation in those cases where a deceased employee leaves no dependents.
In the Freeman case,
supra,,
at p. 326, opinion by Allen, chairman, says: “It is admitted by counsel for the defendant, and the Commission will take judicial notice of the fact, that the premium rates in North Carolina are based upon the payment to the personal representative in cases of death, where there are no dependents, of sixty per centum of the average weekly wages of the deceased at the time of his death. The rate-making authorities found the words of section 40 as plainly expressive of an intent, and accordingly fixed the rates.”
The defendant, Travelers Insurance Company, having been paid the premium by defendant Parker-Graham-Sexton, Inc., employer, to pay compensation in death cases where there are no dependents, as in the present case, is hardly in a position to complain.
Section 71 of the act, latter part, in reference to the agreement of the insurer, says: “Such agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation enforceable in his name.”
The burden is on industry to repair material used in the operation of its works, and under this act the burden is to take care of the human wrecked or killed, whether having dependents or not, and that is the fine purpose of the act agreed upon by employer and employee. The act provides that the burden is not only to provide compensation for those who have dependents, but also for those who have no dependents. The intent of the act was to give equal rights upon the death of the employee who came within the language of the act, whether he has dependents or not. An employee’s life is of value to dependents, and it is unthinkable that it should not be so to the next of kin.
We quote some of the pertinent sections of the act, showing that the General Assembly unquestionably made provisions that those who did not have dependents that the personal representatives had a cause of action:
Section 4 of the act: “From and after the taking effect of this act every employer and employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation
for personal injury or death by accident arising out of and in the course of the employment,
and shall be bound thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.”
Section 11 of the act, in part: “The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act, respectively, to pay and accept compensation on account of personal injury or death by accident,
shall exclude all other rights and remedies of such employees, his personal representative,
parents, dependents or next of kin, as against employer at common law, or otherwise,
on account of such injury, loss of service, or death:
Provided, however,
that when such employee, Ms personal representative or other person may have a right to recover damages for such injury, loss of service, or death from any person other than such employer, he may institute an action at law against such third person or persons before an award is made under this act, and prosecute the same to its final determination; but either the acceptance of an award hereunder, or the procurement of a judgment in an action at law, shall be a bar to proceeding further with the alternate remedy. . . . The acceptance of an award under this act against an employer for compensation for the injury or death of an employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death; and such employer shall be subrogated to any such right, and may enforce, in his own name or in the name of the injured employee or his personal representative the legal liability of such other party. If the injured employee, his personal representative or other person entitled so to do, has made a claim under this act against his employer, and has not proceeded against such other party, the employer may, in order to prevent the loss of his rights by the passage of time, institute such action prior to the making of an award hereunder,” etc. There are other provisions in this .section not necessary to set forth.
Under the sections above quoted, according to the contentions of defendants, an employee who had no dependents, his life is worthless, no matter how negligent his employer may be. The Compensation Act, section 40, gives the personal representatives an action, as set forth in section 4,
supra,,
“for personal injury or death by accident arising out of and in the course of the employment.”
The Compensation Act discarded the theory of fault as the basis of liability and the act confers an absolute right of compensation on all those who come within the above provisions. The compensation is “for personal injury or death by accident arising out of and in the course of the employment.”
Conrad v. Foundry,
198 N. C., 723;
Johnson v. Hosiery Co., ante,
38;
Chambers v. Oil Co., ante,
28.
The latter part of section 2(b), says: “Any reference to an
employee
who has been injured shall, when the employee is dead, include
also his legal representative, dependents, and other persons to whom compensation may be payable.”
The latter part of section 29, “In case of death the total sum paid shall be six thousand dollars, less any amount that may have been paid as partial compensation during the period of disability, payable in one sum to the
personal representative of deceased.”
The Court, in construing section 29, in
Smith v. Light Co.,
198 N. C., at p. 621, says: “Sections 38 and 40, in clear language and in comprehensive detail, provide a legal method of determining compensation for fatal injuries. The last clause of section 29 is totally repugnant to the definite method of settlement prescribed in sections 38 and 40. Moreover, it cannot be merged or blended either with the spirit of the act or the language employed by the Legislature to convey and establish the intent of the lawmaker. Indeed, it is a sort of legal meteor wandering through legal space without substantial relation to any of the bodies which surround it.”
Smith v. Collins-Aikman Corp.,
198 N. C., 621.
All
through
the act “personal representative” is mentioned, indicating a fixed purpose by the General Assembly that compensation should be awarded, where there are no dependents, to the personal representative. While there is no commuted amount provided for in section 38, there is an amount which can be commuted. We think the opinion in
Smith v. Light Co., supra,
settles this matter. The opinion of the Industrial Commission, under the facts and circumstances of this case, express the intent of the act, and we see no reason to disturb the award made. The judgment of the court below is
Reversed.