{ "id": 8608950, "name": "JAMES OSCAR THOMPSON v. VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY, a Corporation", "name_abbreviation": "Thompson v. Virginia & Carolina Southern Railroad", "decision_date": "1939-12-13", "docket_number": "", "first_page": "554", "last_page": "558", "citations": [ { "type": "official", "cite": "216 N.C. 554" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "165 S. E., 355", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N. C., 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603811 ], "opinion_index": 0, "case_paths": [ "/nc/203/0187-01" ] }, { "cite": "169 S. E., 419", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N. C., 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623764 ], "opinion_index": 0, "case_paths": [ "/nc/204/0668-01" ] }, { "cite": "184 S. E., 13", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N. C., 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221334 ], "opinion_index": 0, "case_paths": [ "/nc/209/0463-01" ] }, { "cite": "148 S. E., 452", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N. C., 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628998 ], "opinion_index": 0, "case_paths": [ "/nc/197/0365-01" ] }, { "cite": "101 S. E., 545", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655277 ], "opinion_index": 0, "case_paths": [ "/nc/179/0147-01" ] }, { "cite": "81 S. E., 701", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "165 N. C., 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659748 ], "opinion_index": 0, "case_paths": [ "/nc/165/0472-01" ] }, { "cite": "146 S. E., 79", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627516 ], "opinion_index": 0, "case_paths": [ "/nc/196/0445-01" ] } ], "analysis": { "cardinality": 503, "char_count": 11281, "ocr_confidence": 0.456, "pagerank": { "raw": 1.3626746549842609e-07, "percentile": 0.6366135631845717 }, "sha256": "c35a36a98e9afc19fea4345e76466a7265b6c711230e682deee44740e844bf41", "simhash": "1:23134e1c41cc2e13", "word_count": 1889 }, "last_updated": "2023-07-14T17:26:30.134660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES OSCAR THOMPSON v. VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY, a Corporation." ], "opinions": [ { "text": "Devin, J.\nPlaintiff instituted bis action against defendant Railroad Company for damages for a personal injury alleged to have been caused bim by tbe negligence of tbe defendant. He alleged tbat while be was in a boxcar on defendant\u2019s track, at work for bis employer, tbe B. J. Beynolds Tobacco Company, tbe boxcar was violently struck by one of defendant\u2019s locomotives, negligently operated, and be suffered a physical injury to bis bead and body, for which be asks damages in tbe sum of $3,000. Tbe injury occurred 23 August, 1938, and summons was issued 19 October, 1938.\nDefendant answered, denying tbe allegations of negligence, pleading contributory negligence, and further alleged tbat plaintiff was an employee of B. J. Beynolds Tobacco Company, and tbat both be and bis employer bad accepted tbe provisions of tbe North Carolina \"Workmen\u2019s Compensation Act, and tbat plaintiff\u2019s claim should have been filed with tbe Industrial Commission, which bad exclusive jurisdiction of tbe matters complained of. Tbe answer was verified 9 November, 1938. In March, 1939, defendant filed an amended answer alleging tbat plaintiff\u2019s claim bad been beard and adjudicated by tbe Industrial Commission, and tbat an award thereon bad been paid by tbe employer\u2019s insurance carrier, and tbat tbe insurance carrier, tbe Maryland Casualty Company, bad instituted suit against defendant on behalf of itself and tbe plaintiff to recover damages for tbe injury under tbe provisions of cb. 449, Public Laws 1933 (Micbie\u2019s N. C. Code, sec. 8081 [r]).\nAt tbe bearing defendant demurred to tbe complaint on tbe ground that the injury complained of was due to an accident arising out of and in tbe course of plaintiff\u2019s employment by R. J\". Reynolds Tobacco Company, and that following a bearing bad before tbe Industrial Commission upon tbe report of tbe plaintiff\u2019s employer, and an award made thereon, a suit bad been instituted against tbe defendant by tbe Maryland Casualty Company, employer\u2019s insurance carrier, upon tbe same cause of action, which was now pending, and defendant moved to dismiss tbe action.\nIn support of this demurrer and motion tbe court beard evidence offered by defendant and made certain findings, and adjudged that' tbe motion of defendant be allowed and dismissed tbe action.\nTbe defendant\u2019s demurrer, interposed on the ground that there was another action pending between tbe same parties for tbe same cause, related to matters which do not appear on tbe face of tbe complaint. But this objection may be raised by answer (C. S., 511), treated as a plea in abatement. Lineberger v. Gastonia, 196 N. C., 445, 146 S. E., 79. However, tbe record discloses that plaintiff\u2019s action was begun 19 October, 1938, and that tbe action of tbe Maryland Casualty Company against defendant was not instituted until 15 February, 1939. Hence, tbe defendant\u2019s motion based upon this ground alone could not avail. Pettigrew v. McCoin, 165 N. C., 472, 81 S. E., 701; Allen v. Salley, 179 N. C., 147, 101 S. E., 545; Bank v. Broadhurst, 197 N. C., 365, 148 S. E., 452; Bowling v. Bank, 209 N. C., 463, 184 S. E., 13.\nTreating defendant\u2019s motion as a demurrer ore tenus to tbe jurisdiction of tbe Superior Court, it seems that tbe defect complained of does not appear on tbe face of tbe complaint. Tbe facts found by tbe court below were not alleged or admitted by tbe plaintiff. However, it may be proper to consider tbe matters set up in tbe answer, in tbe light of tbe evidence produced before tbe trial court, as bearing on defendant\u2019s plea that tbe Superior Court did not have jurisdiction of plaintiff\u2019s action.\nTbe North Carolina \"Workmen\u2019s Compensation Act, as amended by chapter 449, Public Laws 1933, prescribes that the rights and remedies grapted by tbe act to an employee to secure compensation for an injury by \u00bfaccident shall exclude all other lights and remedies as against bis employer. Tbe statute contains tbe further provision: \u201cProvided, however, that in any case where such employee, bis personal representative, or other person may have a right to recover damages for such injury, loss of service, or death from any person other than tbe employer, compensation shall be paid in accordance with tbe provisions of this act.\u201d Tbe provision making tbe remedy against tbe employer under tbe act exclusive, does not appear in tbe clause relating to suits against third persons.\nTbe jurisdictional facts, as disclosed by the testimony of the secretary of the Industrial Commission, were these: Notice of the accident was given the Commission by plaintiff\u2019s employer, but the plaintiff Thompson did not at any time make any claim before the Commission for compensation, or for a hearing, or for an award, nor was he ever present or represented at any hearing. Neither the employer nor the employee requested a hearing on compensation, nor did either employer or employee ever agree to an award. The award, dated 13 December, 1938, dealt only with medical expenses, and was made on petition of the doctor.\nThe Workmen\u2019s Compensation Act defines \u201ccompensation\u201d as the \u201cmoney allowance payable to an employee or his dependents as provided for in this act and includes funeral benefits provided herein.\u201d\nIt was alleged in the answer that the.Maryland Casualty Company, the insurance carrier of the employer, paid the award for medical expenses (amounting to $114), and it appears that the Casualty Company has instituted action in its own name against the defendant Railroad Company to recover for the injury to plaintiff. The statute provides that where an employee is insured and the insurance carrier shall have paid any compensation for which the employer is liable the, insurance carrier shall be subrogated to the rights of the employer and may enforce any such rights in the name of the injured employee.\nIt is apparent that no compensation for the injury has been claimed by the plaintiff, or awarded him by the Industrial Commission, and the mere fact that the insurance carrier, having paid the medical expenses allowed by the Commission on the doctor\u2019s petition, has instituted suit in its own name against the defendant, cannot be held to entitle the defendant Railroad Company to a dismissal of plaintiff\u2019s previously instituted action against it for damages for an injury alleged to have been caused by its negligence.\nIn Brown v. R. R., 204 N. C., 668, 169 S. E., 419, Brogden, J speaking for the Court, makes this observation: \u201cManifestly the statute was designed primarily to secure prompt and reasonable compensation for an employee, and at the same time permit an employer, or his insurance carrier, who has made a settlement with the employee, to recover the amount so paid from a third party causing the injury to such employee. C. S., 8081 (r). Moreover, the statute was not designed as a city of refuge for a negligent third party.\u201d\nNor may the rule in Hardison v. Hampton, 203 N. C., 187, 165 S. E., 355, be invoked in support of the judgment below. It was said in that case: \u201cWhen the employer has filed with the Commission a report of the accident and claim of the injured employee, the Commission has jurisdiction of the matter and the claim is filed with the Commission within the meaning of section 24.\u201d But here it affirmatively appears from defendant\u2019s evidence that no claim was made, or attempted to be made, by or on bebalf of plaintiff, or considered by tbe Industrial Commission, for compensation for tbis injury.\nTbe defendant is not primarily concerned witb tbe form in wbicb tbis-action against it, to recover damages for tbe injury to plaintiff, is prosecuted, except to see that it may not be twice vexed nor more tban one recovery allowed. Tbe period of twelve months witbin wbicb plaintiff could file claim for compensation under tbe act bas elapsed, and no other right of action could now accrue for tbe benefit of tbe employer, or its insurance carrier, or tbe plaintiff. If it be established that tbe defendant negligently caused plaintiff\u2019s injury, it must respond in damages, and is not concerned witb tbe method of distribution of tbe recovery. In tbe event of recovery by plaintiff in tbis action, whether tbe insurance-carrier can be reimbursed for tbe amount paid for medical expenses, or, if so, in what maimer, is not now before us. Tbe Court bas power, by proper order, to protect tbe interests of all parties before tbe Court.\nWe conclude that tbe court below was in error in sustaining defendant\u2019s motion, and that tbe judgment dismissing tbe action must be\nReversed.", "type": "majority", "author": "Devin, J." } ], "attorneys": [ "McKinnon, Nance & Seawell for plaintiff.", "McLean & Stacy for defendant." ], "corrections": "", "head_matter": "JAMES OSCAR THOMPSON v. VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY, a Corporation.\n(Filed 13 December, 1939.)\n1. Abatement and Revival \u00a7 17\u2014\nWhere it does not appear upon tbe face of tbe complaint that a prior action is pending between the parties, the objection may be raised by answer, C. S., 517, treated as a plea in abatement.\n2. Abatement and Revival \u00a7 7: Master and Servant \u00a7 44\u2014\nWhere it appears that an injured employee\u2019s action against the third person tort-feasor is instituted prior to the institution of an action by the compensation insurance carrier against the tort-feasor, chapter 449, Public Laws 1935, Michie\u2019s Code, sec. 8081 (r), defendant\u2019s plea in abatement in the employee\u2019s action on the ground of the pendency of a prior action cannot be sustained.\n3. Pleadings \u00a7 14\u2014\nWhen defendant demurs ore tenus on the ground that the court is without jurisdiction, and this defect does not appear upon the face of the complaint, the court may consider the facts alleged in the answer and the evidence heard by it upon defendant\u2019s motion to dismiss.\n4. Master and Servant \u00a7 44 \u2014 Employee may maintain action in his own name against third person tort-feasor when no award of compensation has been made to employee.\nThis action was instituted by an employee against a third person tort-feasor. It appeared that an award for medical expenses had been made on petition of the doctor, bnt no claim for compensation had been filed by the employee against his employer and that no compensation for the injury had been awarded him, and that the time for filing claim therefor had expired, so that no future claim by subrogation could accrue in favor of the employer or insurer against the third person tort-feasor. It further appeared that the insurance carrier subsequently instituted action against the third person tort-feasor to recover the amount paid by the insurer under the award of medical expenses. Held: The third person tort-feasor is liable in damages for any negligent injury inflicted by it and is not interested in the form of the action except to the extent of seeing that it may not be twice vexed nor more than one recovery allowed, nor is it concerned with the method of distribution of any recovery, and therefore it is not entitled to dismissal of the employee\u2019s previously instituted action. Whether, and if so, by what method, the insurance carrier can be reimbursed out of the recovery for the amount paid by it for medical expenses held not presently presented, but the trial court has power, by proper order, to protect the interests of all parties before the court.\nAppeal by plaintiff from Burney, J., at May Term, 1939, of BobesoN.\nBeversed.\nMcKinnon, Nance & Seawell for plaintiff.\nMcLean & Stacy for defendant." }, "file_name": "0554-01", "first_page_order": 620, "last_page_order": 624 }