McCarley v. . Council
171 S.E. 323
N.C.
1933
Check Treatment
Connor, J.

In Brown v. R. R., 202 N. C., 256, 162 S. E., 613, it was held that the personal representative, in that ease the administrator, of a deceased employee, who has accepted from the employer, or from his insurance carrier, compensation for the death of the employee, under the provisions of the North Carolina Workmen’s Compensation Act, can maintain in his own name an action to recover of a third person, who by his negligence has caused the death of the employee, damages for such death. For this reason, there was no error in the order of the Superior Court in that case, striking from the answer of the defendant allegations setting up the payment and acceptance of such compensation as a defense or bar to the action. Section 11 of the Act expressly provides that in such case, the personal representative of the deceased employee may maintain the action, and that a recovery thereon shall be primarily for the benefit of the employer or of his insurance carrier, who are designated by the statute as the beneficiaries of the action, to the extent of the amount of the compensation paid for the death of the employee. The construction of the statute which supports this .holding is not involved in the subsequent appeal in that case. See Brown v. R. R., 204 N. C., 668, 169 S. E., 419. It was approved in Phifer v. Berry, 202 N. C., 388, 163 S. E., 119, and may now be regarded as settled.

In Pridgen and U. S. Fidelity & Guaranty Co. v. Atlantic Coast Line R. R. Co., 203 N. C., 62, 164 S. E., 325, it was held that an employee who has accepted compensation for inj.ury resulting from an accident which arose out of and in the course of his employment, and the insurance carrier of his employer, who has paid compensation for the injury, *375 as awarded by the North Carolina Industrial Commission, can maintain an action against a third person, who by his negligence has caused the injury, which did not result in death, to recover damages for the injury. It is said in the opinion in that case that the allegations of the complaint in effect show that the action was begun and prosecuted by the insurance carrier, primarily for its benefit, as authorized by statute. The- joinder of the injured employee did not affect the right of the insurance carrier to maintain the action. If the amount recovered in the action exceed the amount paid as compensation, the insurance carrier, as plaintiff, would hold the excess for the benefit of the injured employee. For this reason, the complaint was not subject to demurrer for misjoinder of parties or of causes of action. The cause of action alleged in the complaint was vested in the insurance carrier by the statute; the employee was interested only in the recovery, in the event the amount recovered as damages exceeded the amount of the compensation which he had received from the insurance carrier, under the provisions of the North Carolina Workmen’s Compensation Act.

The instant case is distinguishable from both the Brown case and the Pridgen case. In the former case, the action was to recover damages for the death of the employee. The action was properly begun and prosecuted by his personal representative. In the latter case, the action was 'to recover damages for injuries suffered by the employee, which did not result in his death. The action was not begun and prosecuted, as in the instant case, by the employee, who had elected to accept compensation for his injury from his employer or from his insurance carrier, and who by such acceptance is expressly barred by the statute, of the right to recover on the cause of action alleged in the complaint.

There was error in the order in the instant case, striking from the answer the allegations which constitute the First and Further Defense to the cause of action on which plaintiff demands judgment. If these allegations are sustained at the trial, the plaintiff in the present state of the record cannot recover in the action. The plaintiff is not the real party in interest. C. S., 446. For that reason, at the close of the evidence, the plaintiff would be nonsuited. Chapman v. McLawhorn, 150 N. C., 166, 63 S. E., 721. The allegations are not irrelevant, and should not be stricken from the answer. C. S. 537.

The order is reversed, without prejudice to a motion which may be made by the plaintiff in the Superior Court that the insurance carrier be made a party plaintiff to the action, if he is so advised. Cunningham v. R. R., 139 N. C., 427, 51 S. E., 1029. If such motion is allowed, and the insurance carrier files a complaint and prosecutes the action, the action may be maintained. If the insurance carrier declines to prosecute the action, the plaintiff may not be without a remedy.

Eeversed.