*1 plaintiff brief to our calls attention printed it does “that not from the Record that several appear this raised questions were and appeal presented * * *; below therefore passed upon by Court and such are not before this Court.” questions We find properly record to nothing contrary, and defend- although brief, filed a ant there is no of this refutation state- reply ment. do not
We set out the and documents demanded papers in the notice of motion for order the reason discovery that all of these and documents are referred to in papers the affidavit of Mr. with the of No. Plaxco exception “Insurance issued Blue Insurance policy Ridge Company in connection It this with said loan.” that document appears became since no further reference is made there- unimportant either to the case. party
Let the two to be affidavits hereinabove referred reported herewith.
In that it does not the record any appear issues were raised this appeal passed presented below, we will Court not consider issues is dismissed. appeal dismissed. Appeal Taylor JJ., concur. Oxner,
Fishburne, Stukes, NOLAN v. DALEY (73 449) *2 Hartsville, Mr. Edward E. Saleeby, Appellant, III, James Messrs. P. F. Turner Mozingo, Clayton, Greer, Nettles, R. L. all Benny John Re- Darlington, for spondent, *3 Willcox, Hardee,
Messrs. Palmer, Florence, Houck & Curiae, Amici for III, P.
Mr. Darlington, Respond- James Mosingo, for ent, in Reply.
November
Baker, Chief Justice. of an to sue an- right
This action involves other of an tire subject Carolina, the Workmen’s Law South Code et em- 7035-1 acts of said alleged wrongful seq., their in the of duties for performance employer. ployee Yard, of Consumer’s Brick was respondent, injured burned and when the boom seriously permanently another of crane came operated by appellant, line on in contact with electric voltage high premises it is not made While employer. appear the order answer or was complaint, appeal taken, it the “Statement” of rec- appears transcript has collected his ord that the respondent already *4 the claim from Compensation employer. is for in the amount of damages
Respondent’s complaint Dollars, Thousand and for declara- Twenty ($20,000.00) 850-1, under Section Code of tory as judgment, Act 45 St. amended in at April Large, p. that, he the effect both and the although appellant for were covered working State, sue Law of this he entitled to Compensation at common law from rea- recover damages appellant son and wilful acts of appellant. alleged negligent filed his answer appellant that admitting respondent he Yard; and were of Consumer’s Brick that employees they coal, were a car of engaged unloading and a crane was used that being denied purpose; alleged wrongful on acts part, admitted ato declara- respondent’s right but tory that has no judgment, claiming valid respondent him, cause of action it and- that be so de- should clared virtue of Sections 7035-10 and 7035-11 of the Code.
An order was made the Circuit effect Judge was not Section 7035-10 of respondent precluded by the Law from suing the re- appellant; permitting action for spondent proceed This damages. ap- followed. peal
Prior to a discussion of the issue entering upon before Court, we it this deem to state that counsel for Caro- proper lina Power & owner of the Company, electric line Light were, Court, referred order this complaint to file a brief and make an permitted amici argument, curiae. It in their motion to dismiss that the appears appel- foreman, lant was the and not a fellow servant of merely case, but in the that we view take of the this is respondent, not It was also our material. called to attention that the Cir- cuit Court of for the Fourth Circuit construed Appeals has the aforementioned section of our Workmen’s Compensa- we tion Law. Since accord with that con- Court’s thereof, we struction will make no further reference thereto cite See Burns v. Carolina Power & except opinion. F. Light Company, 193 shall confine
We ourselves to a consideration of the perti- section, 7035-10, nent Code of of our Workmen’s Law, which reads as follow: who “Every employer accepts compensation provi- sions of this article shall secure payment compensa- tion to his in the manner hereinafter employees provided; force, and while such remains he or con- security those *5 412- business shall be liable to only any employee his
ducting for elects to come this article who under personal herein in the manner accident the extent and death by specified.” which our at- this section to particular language em- limits recovery by
tention is is directed Law, the “or under those from an covered ployee the by his business” conducting compensation provided the “those (employer’s) Act. Does phrase another suing business” a covered employee preclude the out of and in course injuries growing In- the business? Or adopting “Question employer’s in their re- by respondent volved” as stated appellant briefs, “Does the ‘or those conducting phrase spective Carolina business’ as used Section 7035-10 South law actions Workmen’s Law bar common Compensation as third a fellow a negligent an employee against party?” is
There a wide variance Acts of the states. The South several Compensation is the same as the North Carolina Act Carolina Act here involved concerned. The so far as provision this the same While Act also contains provision. Virginia no the construction of similar Court is in sense bound state, another we well be moved Acts the courts of may such Acts such construction placed adopt with the and reason- when we are logic courts impressed conclusions, when, here, as this their ableness of especially And, in McDowell same. as stated has not construed Court 173, 181, 41 210 S. S. E. (2d) C. Stilley Plywood Act been Compensation having “Our Workmen’s fashioned to North Carolina thereof, Act, Su- opinions a copy practically Act entitled Court that State construing preme so deals effectively Because respect.” opinion great action, to this with the contentions raised parties decisions, decisions of its own and the prior well as with *6 states, other Acts, similar and dissimilar we involving quote at from the recent decision great length very (1952) Carolina, Court of North in Supreme the case of Warner Leder, 727, v. 6, 234 8, N. C. 69 S. E. as follows: (2d) find
“We a diversity to the reme- opinion respect dies third against who are parties injuries employees to the subject of compensation acts due to the provisions in variances Am. 58 provisions. Jur., Workmen’s 60, Compensation, section 616. In such acts where page clause, there is no immunity such as we in have G. S. 97- § 9, fellow workmen are treated as third generally parties within the of the act. See Anno. 106 A. meaning L. R.
“However, with the decisions Tscheil- exception Co., ler v. National 449, 214 Weaving N. C. 199 E.S. 623, and McCune v. Rhodes-Rhyne Manufacturing 351, 217 N. 8 E. C. S. we find no decision in (2d) this or any where, other jurisdiction under an immunity 97-9, clause similar to that contained in G. S. it has been § held that an injured employee may maintain an action at common law a who was fellow'employee responsible for his injury. case,
“In the Tscheiller while the motion was made to dismiss the on the action that all the thereto ground parties were bound Workmen’s provisions Compen- Act, sation statute with re- provision to the individual defendant was not spect raised. Neither it raised in the McCune was case where the court entered judgment nonsuit as to the defendant cor- involuntary submitted poration nonsuit plaintiff voluntary as to individual defendant. “But, in the case of Essick v. City 232 N. Lexington,
C. 60 S. E. (2d) provision giving immunity ‘or those business’, employer contained 97-9, where the had G. accepted pro- Act, visions of Workmen’s was Compensation expressly for construction this Court. presented 414 cases, Court, in
“The decisions of this the Essiek and Bass decisions, jurisdictions, numerous other are in accord with of a subject effect that an Act, out of whose arose cannot maintain the course of his employment, neg common whose co-employee action at law against 258 v. Metzger, caused injury. Cunningham ligence Barre, N. Mass. 150; Bresnahan v. Ill. App. 431; Caira, E. 815; 6 N. Caira v. 296 Mass. E. 252; Miettinen, v. 59 N. 317 Mass. Murphy 540; N. Y. S. Div. Maleady, Behan v. 249 App. Street, St. Manhattanville & Schwartz Forty-Second *7 Co., 49, 22 Y. Misc. N. S. Ry. (2d) Nicholas Ave. 175 Lane, 752; 56 N. Y. S. (2d) v. 185 Misc. Pantolo E. 160 N. 227; v. 117 Ohio St. Landrum Middaugh, L’Archer, 31 E. 691; Ohio N. App., (2d) v. Rosenberger 790; P. 700; v. 182 186 (2d) Kowcun Or. Bybee, 73; v. Peet 38 Chalkley, v. 185 Va. S. Feitig 1916A, Mills, Wash., 437, A. L. R. P. 1915D, Ann. 154. Cas. iswho or of a corporation hold that an officer agent
“We on behalf for and authority the of his within acting scope the such as render acts are to the and whose of corporation, the therefor, is those among conducting liable corporation of the G. within purview business corporation, it Essick v. 97-9, City gives; and entitled § Mills, v. v. Hade Sim- supra; Peet supra; Lexington, of mons, 506; v. 157 W. Rosenberger 132 Minn. N. L’Archer, the G. S. 97-10 and that supra; provision § represen- or the injured employee personal which gives loss of for such injury, to recover damages tative ‘a right the employer,’ other than service, or death from any person the who is stranger means other any party person the contributed to injury. but whose employment negligence not authorize does And further hold that provision we at common to maintain an action the injured employee the whose employer business those conducting would, in To otherwise caused the hold injury. negligence measure, our for which very defeat large purposes enacted. of Act was Instead Workmen’s Compensation industry, or business the worker transferring he is employed, ultimately consuming pub- lic, a loss due acci- economic greater proportion dents him out of and in the course sustained by arising would, we under the subro- employment, Act, contained in our AVorkmen’s G. S. gation 97-10, this to those busi- transfer burden conducting ness of the to the extent of their solvency. officers, never intended that
legislature agents, employees should so business of under- write this economic loss.
“The of Tscheiller Na- is on cases v. plaintiff relying Co., tional Rhodes-Rhyne McCune v. Man- Weaving supra; Hume, and Morrow v. 131 Ohio St. supra; ufacturing 319, 3 N. E. cases,
“As to the Tscheiller McCune in so far they are conflict v. Lex City in Essick opinions decision, supra; Bass v. and this ington, Ingold, supra; they true, it such extent modified. And as con while tended that the facts in case Morrow plaintiff, Hume, on rec similar to those this supra, are presented *8 ord, it be that of must mind compensation kept no similar to that contained Ohio contains clause The in G. S. 97-9 of our act. Compensation Workmen’s Ohio, ; of Adams and Edwards Workmen’s Law (1930) Schneider, Statutes, 1465- section Volume Compensation 3021; v. Chalkley, Feitig supra.” page find with the interpretation ourselves accord AVe its of the North Carolina Court of provisions Law, Act, to the same in our language applied “those his conducting conclude that language (the any business” should be construed to include employer’s) who, as an of covered was per- person business, re- incident to the employer’s work forming any of menial, gardless whether in a employed supervisory also, managerial See Essick v. capacity. City Lexington, 232 N. C. S. E. v. Feitig Chalkley, 185 Va. 38 S. E. distinction,
We are not with a impressed which appears cases, in some of the that from suit extends exemption only to those employees engaged managerial capacities, a covered free sue leaving to another who be to same or a similar happens kind of work. doing doWe not believe intended to legislature exempt placed and leave the low high employees, earner sub- wage ject his liability where the act co-employees especially in whatever render employee, would the em- capacity, liable at common law. ployer The conclusion seems to be in with foregoing harmony the cases in states where Workmen’s Acts Compensation contain similar our Act. cases See cited Leder, Warner v. supra.
The North Carolina cases relied Circuit Judge and modified in the distinguished that Court Warner Liddell, case. The case of Hotel Georgia Equipment 32 Ga. no bears factual App. similarity same, as will be seen nor does the reading Georgia contain, advised, Act far so as we are a phrase comparable to “or those his business.”
We therefore construe Section 7035-10 as follows: An subject his provi- sions of the Act of this state, of, out whose arises in the course of cannot maintain an action at common law employment, whose in- caused the co-employee, negligence This renders conclusion a consideration jury. unnecessary of other raised brief amici curiae. questions reversed, order from is appealed and the complaint dismissed. *9 Taylor and JJ., concur.
Fisi-iburne, Oxner, J., dissents. Stukes, Justice, (dissenting).
Stukes, I that on issue on which the ma- regret single, sharp I decision of this I not think jority case dissent. do depends, our that exclusion from clause of liability compensation law—-“those his business”— conducting (the employer’s) It is includes fellow-servants of unrea- injured employees. sonable it was the intent to im- to that suppose legislative in ex- munize tort-feasant the absence of clear employees, that It be a radical would pression meaning. departure As between from common law and without pro quo. quid law is based on employee compensation take,” as often in the cases. has so been expressed “give But what does a wrongdoing employee give escape answer is obvious for his torts? The liability ordinary It seems me that the absence of to impelling —nothing. a third he must be considered and treated as person statute here to who injures who tortiously happens be fellow employee. indicated, I
As find our statute to extinguish nothing em- of an to his fellow common liability employee there is just nothing extinguish liability ployee, I think the statute other- On contrary, implies employer. is: “he em- The last of section 7035-10 wise. portion (the his business shall be liable only or those conducting ployer) this article for who elects come under any to the extent and or death accident personal is no extent or manner herein There specified.” the manner to another in the act one employee of liability specified is with respect problem so the provision meaningless think, More- not, I held to control. should be hand and terms, itself, use over, its of the conjoint statute quoted those the distinction between an recognizes section employer. the business follows, 7035-11, conforms with the foregoing law which force, clearer; but of 7035-10 and of equal construction un- of an and remedies it rights provides *10 act, der the exclude other “shall all and reme- quoting, rights * * * dies at com- against (his interpolated) employer — ** * mon law ”. Thus the from com- statutory exemption mon law relates to not a liability fellow em- business, and to those ployee, employer’s 7035-10, which Sec. latter cannot be held to fairly include mere a Sec. further servant. 7035-11 provides from, other than recovery “any quoting, person A fellow not “the em- employer.” certainly Careful two sections is con- ployer.” reading together my clusive mind.
The rule which the besides majority opinion adopts, being in my statute, view a construction our unjustified fair of rule, is the the authorities. minority “Fellow according * * * workmen are treated as third but generally a persons, conclusion been contrary has reached some cases.” 58 Am. 61. To the Compensation, § Jur. same effect 71is C. 1565. J. a fellow
“Generally employee, subject the exceptions noted above here be held (not may applicable interpolated) — liable as a third Likewise a foreman party. of common employee has been held a third injured em- party but ployee, a superintendent and held has been not manager a third party,” Connecticut, Illinois, cases from citing New Jersey, 3, Schneider, Pennsylvania and Wisconsin. Yol. p. 212, sec. In the 1949 pocket this volume are part additional cases from Louisiana and Nebraska. The author out at points States, that acts of page some other unlike ours, the third expressly nullify party liability fellow New citing Massachusetts and York cases.
In the Larson, new text very (1952) Workmen’s Com- Law, it is pensation said Vol. sec 72.10: page statutes, “Under most to common law suit is extended An only injured can employer. therefore sue own for the latter’s co-employee negligence, and it follows that the logically can exercise sub- his own tortfeasor rogation rights against This employee. result has been reference to the plain language supported statute, of action argument existing rights should not be deemed in the absence of clear lan- destroyed the moral that a tortfeasor guage, calling upon principle should not be relieved of the of his own consequences wrong- to workmen themselves doing, by stressing danger of a doctrine that dangerous persons engaged occupations should be immune from the of their consequences negligence. A rule such a should not supported variety arguments *11 be defeated resort to such artificial of tort by-products doctrine, as the in an Ohio vice-principal happened case which denied a tort a tortfeasor personal remedy against foreman on im- that he was the alter of the theory ego mune are cited many jurisdictions Cases employer.” is in of the and the support foregoing following quoted 196, footnote from Rehn v. 151 Neb. 36 a N. W. Bingaman, 856, 860: “To hold otherwise would confer unjustly (2d) freedom to toward a upon every employee neglect duty lia- fellow and thus from all escape impunity caused own bility damages proximately negli- gence.”
The New York decisions are of no value here because law of that State has been amended to make compensation it the for a remedy exclusive covered both against and “another the same Williams employ.” Hartshorn, v. N. Y. N. E. It is 296 69 558. (2d) otherwise in New where the Jersey statutory remedy comr is made exclusive as in this pensation against State, of an action for and bringing negligence against servant is not Stacy fellow causing injury precluded. A. v. 9 N. 619. Other sim- Greenberg, (2d) J. decisions be found in the series of annotations which ilar may A. L. R. with references there are concluded to the earlier ones. v. Kirk
A well-reasoned West case is Virginia Tawney hart, Va., 634, 641, 44 E. over W. (2d) expressly It ruled an earlier inconsistent decision of that court. was there said: “There is no contract as between coemployees they subject compensation act in their other in with each no way. They relationship into the that entitles them to fund pay nothing protection under its terms. We can in sound reason- perceive nothing that would entitle a ing coemployee gratuitous protection for his own To hold that not misconduct. coemployee liable for his own would increase the hazard of negligence be We have been employments contrary public policy. able to find from an constitutional or express nothing apart York, Texas, such as exists New Mas- statutory provision sachusetts that would entitle him to an Virginia exemp- also, tion from See Echols v. Mercantile liability.” Chattooga 74 Ga. 38 S. App. I think relies majority opinion, clearly mistakenly, Leder, 234 N. Warner C. 69 S. E. 6. It was action for at common law attempted negligence Brothers, the defendant Leder who was one of Leder Inc., president and was conduct- corporate employer its business at the time of the ing plaintiff, which was under the Workmen’s compensable *12 Law. It seems to me manifestly inapplicable question which we now decide. Co., Cir.,
Burns v. Carolina Power & 4 Light 193 F. (2d) 525, also cited by majority construction of our upon law is or compensation little no but upon reasoning depends and two North Carolina decisions. In Virginia latter, one of the Essick v. leading City 232 Lexington, N. C. 60 S. E. it was held that the (2d) State, clause of the of that ours, similar to compensation from suit at common law the treasurer protected and plant of a who had superintendent corporate employer work- paid men’s death of an from in- compensation out of and in the course juries of his arising employment. I Here think the authority to action again, inapplicable fellow The treasurer and ordinary employee. plant there were conduct- superintendent corporate employer
421 its business ing The other North exempt liability. Carolina decision relied the Court of upon by Appeals Burns case is Bass v. 232 N. C. 60 Ingold, (2d) 114. It was decided with the Essick case and simultaneously referred to the opinion merely latter.
The case referred to above is Virginia Feitig Chalkley, Va. E.S. to concede (2d) appears that it is of a The result was reached minority. more upon philosophical considerations and reasons for which the pro- visions of the be, law should rather compensation than what are. In they this feature the statute is Virginia substantially the same as ours. The rationale is found in the following from the excerpt opinion: “By loss analogy, (to industry) * * * to an damage a loss within the field of industrial accidents intended act to be borne as an industry industrial loss without for re- opportunity What other can be coupment. meaning given phrase * * * ‘those his business’ ?” But it is not a with; loss to we are concerned industry it is a loss to an which was caused of a fellow em- negligence for which the law does not ployee, I expressly impliedly, think, the common law deny right recoupment. facts
unusual case are Feilig found in 184 Va. 35 S. E. 827. In view of our limited function to con- it, strue and the law I and not make apply would not follow court in this instance. highly respected Virginia MORTUARY, J. F. FLOYD INC. v. NEWMAN ET AL.
(73 S. E. 444)