Jones v. E. H. Clement Co.
161 S.E. 403
N.C.
1931
Check Treatment
ClaeksoN, J.

Abram Jones, on 19 February, 1930, while regularly employed by E. H. Clement Company of Durham, suffered an injury by accident that arose out- of and in tbe course of bis employment. Death resulted from tbis accident and injury on 19 April, 1930. On 11 March, 1930, an agreement for payment of compensation was entered into by Abram Jones and tbe defendants. Tbe defendants by that agreement admitted liability to Abram Jones before bis death. On 30 October, 1930, E. C. Brooks, Jr., of Durham, was appointed and duly qualified as administrator of tbe estate of Abram Jones, by tbe clerk of tbe Superior Court of Durham County, and gave bond as required. Tbis appointment was made after six months bad expired from tbe date of death of Abram Jones. Durham County has no public administrator. Tbe defendant contended that, under tbe law, a public administrator should be paid tbe compensation due in tbe case instead of E. O. Brooks, Jr., administrator. Tbis contention of defendants cannot be sustained.

O. S., 15, latter part, is as follows: “If no person entitled to administer applies for letters of administration on tbe estate of a decedent *771 witbin six months from bis death, then the clerk may, in bis discretion, deem all prior rights renounced and appoint some suitable person to administer such estate.”

C. S., 20: “The public administrator shall apply for and obtain letters testamentary, or letters on the estates of deceased persons in the following cases: (1) When the period of six months has elapsed from the death of any decedent, and no letters testamentary, or letters of administration or collection, have been applied for, and issued to any person,” etc.

In Hill v. Alspaugh, 72 N. C., at p. 405, speaking to the construction of the statute: “But after the expiration of six months, should the public administrator fail to apply, the field is open to the probate judge (now clerk of the Superior Court) to treat all right of preference as renounced and to appoint, in the exercise of his discretion, some suitable person to administer the estate. This view is in accord with public policy, which requires the estates of decedents to be promptly administered and distributed among the persons entitled thereto.” Withrow v. DePriest, 119 N. C., 541; In re Bailey’s Will, 141 N. C., 193; In re Neal’s Will, 182 N. C., 405.

In Holmes v. Wharton, 194 N. C., at p. 473-4, is the following: “When, however, the death of the person upon whose estate the letters were issued, is admitted or proven, the statute confers jurisdiction upon the clerks of the Superior Court of the several counties of the State. The clerk in each county, has jurisdiction in probate matters, within his county when certain facts, as set out in the statute, have been established. When these facts are found by the clerk upon application to him for the issuance of letters of administration, he proceeds at once to exercise his statutory jurisdiction. The validity of his orders, made in the exercise of such jurisdiction, cannot be impeached, collaterally, by evidence tending to show that the facts with respect to the domicile of the deceased, etc., are otherwise than as found by him. His jurisdiction in so far as it is dependent upon the facts set out in the statute, is conclusive, unless made the subject of a direct attack by a party in interest.” Fann v. R. R., 155 N. C., 136; Batchelor v. Overton, 158 N. C., 396; Tyer v. Lumber Co., 188 N. C., 274.

The defendants’ next contention: Whether or not, in the absence of an express finding and judicial determination that a deceased employee left no dependent, an award under the Workmen’s Compensation Act should be made to the personal representative of such deceased employee? Under the facts and circumstances of this case, we think the award was properly made to the personal representative of the deceased. *772 The hearing Commissioner, J. Dewey Dorsett, in the finding of facts has the following: “4. No dependents, either wholly or partially dependent have been located after diligent search for said dependents on the part of the insurance carrier.” The formal award issued on 23 December, 1930, set forth, “Upon the finding that the deceased left no person wholly or partially dependent upon him at the time of the accident and that E. C. Brooks, Jr., has duly qualified as administrator, the defendant will pay to E. C. Brooks, Jr., in a lump sum, etc.” The defendants appealed to the full Commission, and these findings were approved by the full Commission.

In Southern v. Cotton Mills Co., 200 N. C., 165, it is held: “The findings of fact of a member of the Industrial Commission in a hearing before him under the Workmen’s Compensation Act, approved by the full Commission upon appeal, is conclusive upon the courts when supported by any sufficient evidence.” Williams v. Thompson, 200 N. C., 463.

In Reeves v. Parker, 199 N. C., at p. 242, the law is stated: “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 that there was sufficient judicial determination that the employee left no dependents, at least, to base an application for letters of administration on. We see no good reason for defendants to complain, as the carrier was paid a premium for the risk. When the carrier fulfils its obligation to the administrator of the dead man’s estate, it does what it was paid a premium to do and in law and good morals should do.

The last contention of defendant: That there was error in the amount of award. What amount is payable to the personal representative in the case of a deceased employee who leaves no dependents? We think the amount awarded by the Commission and confirmed by the court below, correct.

The method of arriving at the award to E. C. Brooks, Jr., administrator, is the same as adopted by the North Carolina Industrial Commission in Reeves v. Parker, Vol. 1, Opinions of Commission, p. 277. This opinion was written by the hearing Commissioner Dorsett, and upon appeal adopted and affirmed by the full Commission. On appeal to this Court from the full Commission, in Reeves v. Parker, 199 N. C., at p. 239, it is said: “We are now called upon to sustain or reverse the Industrial Commission. We think the opinion of the Commission should be upheld.”

*773 Tbe defendants discuss interestingly commute and commuted amount, as used in sections 38 and 40, of tbe Workmen’s Compensation Act, but we cannot follow tbe conclusion reached by defendants.

Tbe Workmen’s Compensation Act is not as clear as it should be, as may be noted from tbe many cases brought to this Court; but we think that tbe reasonable and just construction given it by tbe Industrial Commission and tbe court below in this case correct. Tbe judgment is

Affirmed.