Eledge v. Carolina Power & Light Co.
55 S.E.2d 179
N.C.
1949
Check Treatment
BeNNY, J.

It clearly appears from the record herein, that a settlement has been agreed upon between the plaintiff as the personal representative of her intestate and the Coal Operators Casualty Company, the insurance carrier for M. B. Haynes, pursuant to the provisions of the Workmen’s Compensation Act; and that this action was instituted within six months of the injury and death of plaintiff’s intestate.

Under the original provisions of our 'Workmen’s Compensation Act, Section 11, Chapter 120, of the Public Laws of 1929, an employee or his personal representative had to elect whether he would accept the benefits available to him under the Workmen’s Compensation Act, or would proceed in a suit at common law against a third party to recover damages for such injury. And where the injured employee or his personal representative elected to accept the benefits available under the provisions of the Workmen’s Compensation Act, such acceptance was a complete bar to his right to proceed with the alternate remedy.

The Act, however, has always provided that where an employer has assumed liability for an award for compensation, he shall be subrogated to such rights as the injured employee or his personal representative had against any other party for such injury or death. Likewise, the Act provided that where an insurance carrier has paid an award for which the employer was liable, the insurance carrier shall be subrogated to all the rights of the employer, and that such subrogated rights may be enforced against a third party in the name of the employer, or the insurance carrier, as the case may be, or in the name of the injured employee or his personal representative.

The case of Brown v. R. R., 202 N.C. 256, 162 S.E. 613, was decided while the original provisions of our Workmen’s Compensation Act were in full force and effect. The Court held in that case that while the suit was brought for the primary benefit of the employer or its carrier, if any, neither the employer nor its carrier was a necessary or proper party to the action. However, on a second appeal, reported in 204 N.C. 668, 169 S.E. 419, the Court held that an answer filed by the defendant, pleading the acceptance of an award, pursuant to the provisions of the Workmen’s Compensation Act, by the intestate’s personal representative, and a plea of negligence on the part of the employer as a bar to any recovery in the action in so far as the employer or its carrier may be beneficiaries *587 in whose bebalf the action was prosecuted, was proper and reversed the trial court which had allowed a motion to strike the answer.

In 1933 the General Assembly amended the Workmen’s Compensation Act, eliminating the requirement for an election of remedies, and authorizing the employee or his personal representative to bring an action against a third party if the employer had not instituted such action within sis months of the date of such injury or death. Chapter 449, Public Laws of 1933. The Act was amended again by Chapter 622, Session Laws of 1943, which amendment provided “that after the Industrial Commission shall have issued an award, or the employer or his carrier has admitted liability in writing and filed the same with the Industrial Commission, the employer or his carrier shall have the exclusive right to commence an action.” Such action may still be instituted in the name of the injured employee, or his personal representative, and if not brought within six months by the employer or his carrier, the employee or his personal representative may institute such action. G.S. 97-10.

The first question for determination is whether or not the defendant Power Company has the right to plead the payment of an award to the personal representative of the plaintiffs intestate, pursuant to the provisions of the Workmen’s Compensation Act, so as to lay the basis for its plea of contributory negligence against M. B. Haynes, the employer. For the insurance carrier in whose behalf this action was in fact instituted is not entitled to recover anything from the defendant Power Company if the employer’s negligence contributed to or concurred with the negligence of the defendant in producing plaintiff intestate’s injury and death. Brown v. R. R., 204 N.C. 668, 169 S.E. 419. The statute, G.S. 97-10, provides that the insurance carrier shall have no “further rights than those existing in the employer at the time of the injury to or death of the employee.”

The defendant Power Company and the employer are not joint tort-feasors, Brown v. R. R., supra (202 N.C. 256), consequently the Power Company is entitled to plead the contributory negligence of M. B. Haynes, the employer, as a bar to any recovery by the insurance carrier, who has been subrogated only to his rights. G.S. 97-10; Brown v. R. R., supra (204 N.C. 668).

The case of Sayles v. Loftis, 217 N.C. 674, 9 S.E. 2d 393, cited by the plaintiff appellee, is not in point. The allegations in the answer filed in that case relative to the payment of compensation under the Workmen’s Compensation Act, were not coupled with any plea of negligence on the part of the employer, or with any other defense, and were properly stricken.

*588 Tbe allegations by tbe Power Company relative to tbe contract of indemnity and its cross action were properly stricken, since no judgment for damages can be obtained against tbe Power Company in tbis action, unless tbe jury finds tbat its negligence was tbe proximate cause, or one of tbe proximate causes, of tbe death of plaintiff’s intestate. Moreover, if upon tbe trial tbe jury should find tbat tbe negligence of tbe employer, M. B. Haynes, contributed to tbe injury and death of plaintiff’s intestate, tbe insurance carrier cannot recover. Only tbe excess over and above tbe amount paid by tbe carrier, if tbe amount awarded by tbe jury should be in excess of tbat amount, could be collected from tbe Power Company. Hence, there is no basis for a cross action against tbe employer or bis insurance carrier, Evans v. Johnson, 225 N.C. 238, 34 S.E. 2d 73, and tbe Power Company is not entitled to be indemnified against its own negligence.

Plaintiff’s appeal — Affirmed.

Defendant’s appeal — Affirmed.