{
  "id": 8551849,
  "name": "ANNIE NEAL STEVENSON, Sister; CURTIS DANIELS, Brother; ALFRED DANIELS, Brother; O'NEAL DANIELS, Deceased Employee v. CITY OF DURHAM, Employer; Self-Insurer",
  "name_abbreviation": "Stevenson v. City of Durham",
  "decision_date": "1971-11-17",
  "docket_number": "No. 7114IC497",
  "first_page": "632",
  "last_page": "636",
  "citations": [
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      "type": "official",
      "cite": "12 N.C. App. 632"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "267 N.C. 521",
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  "analysis": {
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  "last_updated": "2023-07-14T18:50:27.087613+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judge Hedrick concurs.",
      "Chief Judge Mallard dissents and files a dissenting opinion."
    ],
    "parties": [
      "ANNIE NEAL STEVENSON, Sister; CURTIS DANIELS, Brother; ALFRED DANIELS, Brother; O\u2019NEAL DANIELS, Deceased Employee v. CITY OF DURHAM, Employer; Self-Insurer"
    ],
    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nAs stated in the record, \u201cThe question presented by the appeal is as follows: Does the definition of brothers and sisters set out in N.C. \u00a7 97-2(12) apply to the definition of \u2018next of kin\u2019 set out in N.C. \u00a7 97-40?\u201d\nA similar question was presented to this Court and decided in the case of Jones v. Sutton, 8 N.C. App. 302, 174 S.E. 2d 128 (1970), and this Court, speaking through Judge Britt, held that G.S. 97-2(12) defined a person over eighteen at the time of father\u2019s death as not a child and therefore is not \u201cnext of kin\u201d as defined in G.S. 97-40. We think that case is controlling in the present matter.\nThe appellants, in a very persuasive brief, \u201curge this Court to reconsider its decision in the Jones case.\u201d\nThe Jones case was filed 27 May 1970. The 1971 amendment did not become effective until 1 July 1971 which was after the death in this case. We think the Jones case properly construed the Workmen\u2019s Compensation Act and correctly held that G.S. 97-40 should be construed in pari materia with G.S. 97-2(12). We feel strengthened in this view by the fact that the Supreme Court of North Carolina in Horney v. Pool Co., 267 N.C. 521, 148 S.E. 2d 554 (1966), stated:\n\u201c ... It is noted that G.S. 97-40 was amended in 1965 (Session Laws of 1965, Chapter 419) so that, under certain circumstances, the father, mother or sister of a deceased employee, without reference to dependency, would be entitled to receive death benefits under the Workmen\u2019s Compensation Act. ...\u201d (Emphasis added.)\nWe are of the opinion that this is not one of the \u201ccertain circumstances\u201d when brothers and sisters are entitled to receive death benefits. We adhere to our previous position in the Jones case and hold that G.S. 97-40 must be construed with G.S. 97-2(12).\nAffirmed.\nJudge Hedrick concurs.\nChief Judge Mallard dissents and files a dissenting opinion.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      },
      {
        "text": "Chief Judge Mallard\ndissenting.\nIn my opinion, the majority, by its literal and mechanical approach to the statutes in question in this case, has misinterpreted the legislative intent and purpose of G.S. 97-40, as rewritten by the General Assembly in 1965. I think that the terms \u201cbrother\u201d and \u201csister,\u201d as used in the context of G.S. 97-40, were intended in their general and commonly-accepted sense and that no resort to the definitions contained in G.S. 97-2(12) is either required or permitted.\nG.S. 97-2 provides, in part:\n\u201cWhen used in this article, unless the context otherwise requires\u2014\n* * *\n(12) * * * \u2018Brother\u2019 and \u2018sister\u2019 include stepbrothers and stepsisters . . . but does not include married brothers nor married sisters, unless wholly dependent on the employee. \u2018Child,\u2019 \u2018grandchild,\u2019 \u2018brother,\u2019 and \u2018sister\u2019 include only persons who at the time of death of the deceased employee are under eighteen years of age.\u201d (Emphasis added.)\nG.S. 97-38, which was discussed in Jones v. Sutton, 8 N.C. App. 302, 174 S.E. 2d 128 (1970), establishes three priorities or methods of payment of compensation in cases under the Act where death proximately results from an accident, that is, for full dependents, partial dependents'and for those who are partial dependents and \u201cnext of kin\u201d as defined in G.S. 97-40. Thus, the language of G.S. 97-38 clearly requires the application of the definition of \u201cnext of kin\u201d contained in G.S. 97-40 to its own provisions.\nG.S. 97-40, prior to being rewritten in 1965, unmistakably excluded any non-d&pendent from receiving compensation \u2014 only wholly or partially dependent next of kin could take.\nIn rewriting G.S. 97-40 in 1965, it appears to me that the General Assembly clearly intended to change the former rule that no non-dependent was entitled to any compensation for the death of an employee. G.S. 97-40, as rewritten in 1965 (and applicable in this case), provided in part:\n\u201c . . . (I)f the deceased employee leaves neither whole nor partial dependents, then the compensation . . . shall be . . . paid in a lump sum to the next of kin as herein defined. For purposes of this section and G.S. 97-S8, \u2018next of kin\u2019 shall include only child, father, mother, brother or sister of the deceased employee. For all such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under this section ....\nIf the deceased employee leaves neither whole dependents, partial dependents, nor next of kin as hereinabove defined, then no compensation shall be due or payable on account of the death of the deceased employee, except that the employer shall pay or cause to be paid the burial expenses of the deceased employee not exceeding five hundred dollars ($500.00) to the person or persons entitled thereto.\u201d (Emphasis added.)\nIn the statute it is stated that \u201cnext of kin\u201d as defined in G.S. 97-40, who a/re neither wholly nor partially dependent upon the deceased employee, may now take. (This statute was again amended in 1971 to specifically include adult brothers and sisters.)\nIt appears to me that the statute was rewritten in 1965 to permit payment of compensation to non-dependent \u201cnext of kin,\u201d including brothers and sisters of the deceased employee, should such employee not be survived by any dependents. Therefore,. the definitions contained in G.S. 97-2(12), which are obviously designed to provide arbitrary tests for dependency, are not pertinent to the correct construction of this portion of G.S. 97-40, and an application of them only serves to subvert of thwart the legislative intent. Inasmuch as dependency is no longer the key to.interpreting this portion of G.S. 97-40, this is a legitimate instance where \u201cthe context otherwise requires\u201d; that is, where G.S. 97-2(12) should not be applied. It is also one of those \u201ccertain circumstances,\u201d as referred to by the majority, where the context of the statute requires that the terms \u201cbrother\u201d and \u201csister\u201d be given their ordinary meanings and not the limited and constricted ones found in G.S. 97-2 (12). The doctrine of pari materia is not applicable here. To hold otherwise is to give to the statute a strained and unintended interpretation.\nI do not agree that Horney v. Pool Co., 267 N.C. 521, 148 S.E. 2d 554 (1966), strengthens the majority opinion.\nThere is no question in the present case but that the plaintiffs are the brothers and sister, as these words are generally used and defined, of the deceased employee. Where the deceased is survived by no actual dependents, G.S. 97-40 no longer requires that the \u201cnext of kin,\u201d as therein defined, be dependents in order to receive the benefits payable under the Act. Therefore, the requirement that in order to recover herein, these wow-dependents be under eighteen years of age is not warranted when applied to the provision of G.S. 97-40 as amended in 1965 and prior to the 1971 amendment. I would reverse the decision of the Commission in this case.",
        "type": "dissent",
        "author": "Chief Judge Mallard"
      }
    ],
    "attorneys": [
      "Mason H. Anderson for claimant-appellants.",
      "C. V. Jones and S. F. Gantt by S. F. Gantt for employer-appellee."
    ],
    "corrections": "",
    "head_matter": "ANNIE NEAL STEVENSON, Sister; CURTIS DANIELS, Brother; ALFRED DANIELS, Brother; O\u2019NEAL DANIELS, Deceased Employee v. CITY OF DURHAM, Employer; Self-Insurer\nNo. 7114IC497\n(Filed 17 November 1971)\nMaster and Servant \u00a7 79\u2014 workmen\u2019s compensation \u2014 death benefits \u2014 next of kin \u2014 brothers and sisters\nThe definition of \u201cbrother\u201d and \u201csister\u201d contained in G.S. 97-2(12) applies to those words as used in the definition of \u201cnext of kin\u201d in G.S. 97-40 prior to its amendment effective 1 July 1971; consequently, two brothers and a sister of a deceased employee who were all over the age of 18 and married at the time of the employee\u2019s death were not entitled to \u201cnext of kin\u201d compensation under the Workmen\u2019s Compensation Act.\nChief Judge Mallard dissenting.\nAppeal by claimants from Opinion and Award of the North Carolina Industrial Commission filed 1 April 1970.\nThere was no dispute as to the facts, and the Commission adopted the stipulations of the parties which are summarized as follows:\nAt the time of the death of O\u2019Neal Daniels, an employer-employee relationship existed between him and the defendant. The defendant was a self-insurer. The death resulted from an injury by accident arising out of and in the course of the employment on 18 September 1969. Defendant paid $500.00 for funeral expenses to the administratrix of the estate. Deceased left surviving no wife, children, parents or dependent of any kind. Deceased was survived by two brothers and ,one sister, all of whom were over the age of eighteen and married at the time of the death of deceased.\nThe Commission held that under the decision of Jones v. Sutton, 8 N.C. App. 302, 174 S.E. 2d 128 (1970), G.S. 97-40, should be construed in pari materia with G.S. 97-2(12), and when so construed the claimants were not next of kin and therefore no compensation was due or payable on account of the death of the deceased employee, O\u2019Neal Daniels, except the burial expenses not exceeding $500.00 which had already been paid.\nFrom this opinion and award the claimants appealed.\nMason H. Anderson for claimant-appellants.\nC. V. Jones and S. F. Gantt by S. F. Gantt for employer-appellee."
  },
  "file_name": "0632-01",
  "first_page_order": 658,
  "last_page_order": 662
}