{ "id": 8559782, "name": "J. A. HORNEY, Administrator of the Estate of RICHARD EUGENE HORNEY, Deceased, v. MEREDITH SWIMMING POOL COMPANY, INC., and DAVID MEREDITH", "name_abbreviation": "Horney v. Meredith Swimming Pool Co.", "decision_date": "1966-06-16", "docket_number": "", "first_page": "521", "last_page": "528", "citations": [ { "type": "official", "cite": "267 N.C. 521" } ], "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": "114 S.E. 2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624931 ], "opinion_index": 0, "case_paths": [ "/nc/252/0615-01" ] }, { "cite": "104 A.L.R. 339", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "338 Mo. 857", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1897482 ], "weight": 2, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/mo/338/0857-01" ] }, { "cite": "228 Mo. App. 463", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 8729426 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mo-app/228/0463-01" ] }, { "cite": "207 N.Y.S. 2d 375", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "63 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599630 ], "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0088-01" ] }, { "cite": "153 S.E. 266", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "198 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619113 ], "pin_cites": [ { "page": "725-726" } ], "opinion_index": 0, "case_paths": [ "/nc/198/0723-01" ] }, { "cite": "191 S.E. 403", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628163 ], "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0571-01" ] }, { "cite": "137 N.E. 268", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "270 U.S. 535", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142075 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/270/0535-01" ] }, { "cite": "126 A. 257", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "256 P. 447", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "32 N.E. 2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 N.E. 795", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "294 P. 2d 248", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 500606 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/kan/179/0197-01" ] }, { "cite": "10 So. 2d 785", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 3002858, 10087011 ], "opinion_index": 0, "case_paths": [ "/la/201/1003-01", "/so2d/10/0785-01" ] }, { "cite": "147 P. 2d 199", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4971622 ], "opinion_index": 0, "case_paths": [ "/or/173/0682-01" ] }, { "cite": "64 So. 2d 277", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9911457 ], "opinion_index": 0, "case_paths": [ "/so2d/64/0277-01" ] }, { "cite": "198 So. 486", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 1939581 ], "opinion_index": 0, "case_paths": [ "/fla/144/0719-01" ] }, { "cite": "196 F. 2d 947", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 499465 ], "opinion_index": 0, "case_paths": [ "/f2d/196/0947-01" ] }, { "cite": "92 A. 354", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "opinion_index": 0 }, { "cite": "137 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568279 ], "opinion_index": 0, "case_paths": [ "/nc/262/0462-01" ] }, { "cite": "82 S.E. 2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598963 ], "opinion_index": 0, "case_paths": [ "/nc/240/0330-01" ] }, { "cite": "139 S.E. 2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570014 ], "opinion_index": 0, "case_paths": [ "/nc/263/0361-01" ] }, { "cite": "139 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567915 ], "opinion_index": 0, "case_paths": [ "/nc/263/0120-01" ] }, { "cite": "89 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620611 ], "opinion_index": 0, "case_paths": [ "/nc/243/0055-01" ] }, { "cite": "160 S.E. 835", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626935 ], "opinion_index": 0, "case_paths": [ "/nc/201/0574-01" ] }, { "cite": "145 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559522 ], "opinion_index": 0, "case_paths": [ "/nc/266/0017-01" ] }, { "cite": "102 S.E. 2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621185, 8621212 ], "opinion_index": 0, "case_paths": [ "/nc/248/0176-01", "/nc/248/0176-02" ] }, { "cite": "101 S.E. 2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628127 ], "opinion_index": 0, "case_paths": [ "/nc/247/0631-01" ] } ], "analysis": { "cardinality": 845, "char_count": 18632, "ocr_confidence": 0.598, "pagerank": { "raw": 3.5219888717574174e-07, "percentile": 0.8838609895789291 }, "sha256": "7be63ee049799adc74cb04816e3273f59c004340195ff3b8efce05452eb9e235", "simhash": "1:5709f16ee42aff5d", "word_count": 3088 }, "last_updated": "2023-07-14T22:57:43.953535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting." ], "parties": [ "J. A. HORNEY, Administrator of the Estate of RICHARD EUGENE HORNEY, Deceased, v. MEREDITH SWIMMING POOL COMPANY, INC., and DAVID MEREDITH." ], "opinions": [ { "text": "Bobbitt, J.\nFor purposes of this appeal, we assume, as do the parties in their briefs, (1) that Horney and Pool Company were subject to and bound by the provisions of the Workmen\u2019s Compensation Act; (2) that Horney was fatally injured by accident arising out of and in the course of his employment by Pool Company; and (3) that the complaint (sufficiently) alleges Horney\u2019s injury and death were proximately caused by the negligence of defendants.\nPlaintiff seeks to recover under G.S. 28-173 which, in pertinent part, provides: \u201cWhen the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured 'party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors shall be liable to an action for damages, to be brought by the executor, administrator or collector of the decedent; . . .\u201d (Our italics.)\nAt common law there was no right of action for wrongful death. Such right of action exists only by virtue of said statute. Armentrout v. Hughes, 247 N.C. 631, 101 S.E. 2d 793, and cases cited; In re Estate of Ives, 248 N.C. 176, 102 S.E. 2d 807, and cases cited. The right of action conferred by said statute vests in the personal representative of the deceased. Bank v. Hackney, 266 N.C. 17, 145 S.E. 2d 352, and cases cited.\nThe right of action for wrongful death \u201cis limited to \u2018such as would, if the injured party had lived, have entitled him to an action for damages therefor.\u2019 \u201d Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835. Hence, the administrator of an unemancipated child whose death is caused by the negligence of his parent has no cause of action against the parent for the wrongful death of the child because such child, if he had lived, would have had no cause of action against the parent on account of his injuries. Goldsmith v. Samet, supra; Lewis v. Insurance Co., 243 N.C. 55, 89 S.E. 2d 788; Capps v. Smith, 263 N.C. 120, 139 S.E. 2d 19; 3 Lee, North Carolina Family Law (Third Edition), \u00a7 248, pp. 174-175. On like grounds, neither a parent nor his personal representative has an action for wrongful death against an unemancipated child or his representative. Cox v. Shaw, 263 N.C. 361, 139 S.E. 2d 676.\nG.S. 97-9 provides: \u201cEvery employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified.\u201d (Our italics.)\nG.S. 97-10.1 provides: \u201cIf the employee and the employer are subject to and have accepted and complied with the provisions of this article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.\u201d (Our italics.)\nIt is well established by our decisions, based on G.S. 97-9 and G.S. 97-10.1, that Horney, if he had lived, could not have maintained a common-law action against the Pool Company, his employer, or against Meredith, who was conducting its business. Under the circumstances alleged, a claim against his employer and its insurance carrier under the Workmen\u2019s Compensation Act would have been his exclusive remedy. McNair v. Ward, 240 N.C. 330, 82 S.E. 2d 85, and cases cited; Burgess v. Gibbs, 262 N.C. 462, 137 S.E. 2d 806, and cases cited. As stated in Gregutis v. Waclark Wire Works, 92 A. 354 (N.J.), in considering a similar factual situation, \u201cthe condition upon which a right of action is given to the personal representatives of a deceased person by the Death Act is not present in the case at bar.\u201d\nWhile the foregoing affords sufficient ground for decision that plaintiff cannot recover under G.S. 28-173, our wrongful death statute, we deem it appropriate to discuss plaintiff\u2019s contentions.\nG.S. 97-40, at the time of Horney\u2019s injury and death, provided: \u201cIf the deceased employee leaves neither whole nor partial dependents, no compensation shall be due or payable on account of the death of the deceased employee.\u201d Hence, the father, the mother and the two sisters or Horney, although his next of kin, were not entitled to an award of compensation on account of his death because they were not wholly or partially dependent upon him.\nIn Patterson v. Sears-Roebuck & Co., 196 F. 2d 947, the Court of Appeals for the Fifth Circuit affirmed a judgment dismissing the complaint \u201cfor want of a statement of a recoverable claim.\u201d As stated in the opinion of Chief Judge Hutcheson, the plaintiff, administrator of the estate of a deceased employee, alleged \u201cthat decedent left surviving her only a husband, a father, and a brother, no one of whom was in any degree dependent on said decedent, either in fact or within the scope of the definition of dependents as set forth in the Alabama Workmen\u2019s Compensation Act, . . .\u201d Decision required consideration of the Workmen\u2019s Compensation Act and of the wrongful death statute of Alabama.\nIt is contended here, as in Patterson v. Sears-Roebuck & Co., supra, that, because the surviving next of kin were not wholly or partially dependent upon the decedent and therefore were not entitled to an award under the Workmen\u2019s Compensation Act, the plaintiff is entitled to recover damages under the wrongful death statute. In our opinion, for reasons heretofore and hereafter stated, this contention is unsound. Decisions involving substantially the same factual situation as that considered herein and supporting our conclusion include the following: Gregutis v. Waclark Wire Works, supra; Patterson v. Sears-Roebuck & Co., supra; Chamberlain v. Florida Power Corporation, 198 So. 486 (Fla.); Howze v. Lykes Bros., 64 So. 2d 277 (Fla.); Bigby v. Pelican Bay Lumber Co., 147 P. 2d 199 (Ore.); Atchison v. May, 10 So. 2d 785 (La.); Neville v. Wichita Eagle, 294 P. 2d 248 (Kan.); Shanahan v. Monarch Engineering Co., 114 N.E. 795 (N.Y.); McDonald v. Miner, 32 N.E. 2d 885 (Ind.); Treat v. Los Angeles Gas & Electric Corporation, 256 P. 447 (Cal.). See also, Liberato v. Royer, 126 A. 257 (Pa.), affirmed in 270 U.S. 535, 46 S. Ct. 373, 70 L. Ed. 719; McDonnell v. Berkshire St. Ry. Co., 137 N.E. 268 (Mass.).\nThe Workmen\u2019s Compensation Act \u201ccontemplates mutual concessions by employee and employer; for that reason, its validity has been upheld, and its policy approved.\u201d Winslow v. Carolina Conference Association, 211 N.C. 571, 579, 191 S.E. 403. \u201cThe master in exchange for limited liability was willing to pay on some claims in the future where in the past there had been no liability at all.\u201d Conrad v. Foundry Company, 198 N.C. 723, 725-726, 153 S.E. 266. Liability based on negligence was eliminated. Vause v. Equipment Co., 233 N.C. 88, 91, 63 S.E. 2d 173.\nThe opinion in Howze contains this succinct statement: \u201cThe philosophy of workmen\u2019s compensation is that when employer and employee accept the terms of the act their relations become contractual and other statutes authorizing recovery for negligent death become ineffective.\u201d In Chamberlain, on which Howze is based, this thesis is more elaborately discussed and supporting decisions are cited.\nOur Workmen\u2019s Compensation Act deals expressly with cases where the compensable injury results in death. The remedies provided thereby \u201cexclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.\u201d G.S. 97-10.1.\nThis excerpt from the opinion in Shanahan is pertinent: \u201cA certain liability is imposed for death, and that liability exclusive. No other responsibility is left which springs from the occurrence upon which liability rests \u2014death \u2014 and the effect of the compensation as a satisfaction of all other claims is in no way limited or impaired by the circumstances of the identity of the persons to whom it is paid or because in a given case no one survives to take advantage of the statute.\u201d As noted in Schnall v. 1918 Harmon St. Corp., 207 N.Y.S. 2d 375: \u201cIf the decedent had lived he would have been entitled to a compensation award; and if he had been survived by a dependent, the latter would have been entitled to such an award.\u201d\nAs stated in Gregutis: \u201cSince the Workmen\u2019s Compensation Act by its terms repeals all inconsistent legislation, the rights and remedies thereby given are substituted for those theretofore provided by the Death Act. The result is that where, as here, the employee contracts to work under section 2 of.the Workmen\u2019s Compensation Act, the damages to be paid by the employer in case of death are limited by that act, and an action cannot be maintained in disregard of that act.\u201d\nAs stated in Patterson: \u201cNor is the result . . . that no action could be brought against an employer for death damages where a particular employee has no dependents, of importance in law unless by express provision the statute makes it so. The Legislature could take away all remedy for injuries resulting in death, or condition it as it saw fit. It could provide, as it has done under the Workmen\u2019s Compensation Act, and as it does in many death damage cases in other states, for a strictly limited kind of recovery.\u201d\nAs stated in Chamberlain: \u201cOne of the benefits to the employee is compensation irrespective of the cause of injury, but under our act this does not apply to other than dependents. The right to bring a suit at law for damages for death by wrongful act did not exist at common law. It exists only by virtue of statute. (Citation) It being competent for the legislature to take away this right, it is competent for them to enact that the employee may by contract elect to have damages for injuries or death he may sustain governed by the provisions of the Workmen\u2019s Compensation Act.\u201d\nWith reference to Miller v. Hotel Savoy Co., 228 Mo. App. 463, 68 S.W. 2d 929, cited and stressed by plaintiff, we adopt with approval what was said in Neville v. Wichita Eagle, supra, viz.: \u201cThe above opinion of the Kansas City Court of Appeals need not be reviewed here. That court held in a somewhat similar factual situation that the parents could maintain the action as such action was one not provided for or precluded by the state compensation act. However- in the later case of Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W. 2d 620, 624, 104 A.L.R. 339, the Supreme Court of Missouri commented on the Miller decision saying it did not approve of the expression in the Miller case that the phrase \u2018not provided for by this chapter\u2019 meant \u2018not compensated for by this chapter.\u2019 The Miller decision is not persuasive here.\u201d\nPlaintiff cites and stresses Ivey v. Prison Department, 252 N.C. 615, 114 S.E. 2d 812, in which a judgment sustaining a demurrer to plaintiff\u2019s claim was reversed. The proceeding was instituted before the North Carolina Industrial Commission by an administrator to recover under the Tort Claims Act (G.S. Chapter 143, Article 31) for the death of his intestate, a prisoner, allegedly caused by the negligence of a named employee of the North Carolina Prison Department. When the Tort Claims Act was enacted, G.S. 97-13, captioned \u201cExceptions from provisions of article,\u201d in pertinent part, provided: \u201c(c) Prisoners. \u2014 This article shall not apply to prisoners being worked by the State or any division thereof\u201d unless the results of an injury arising out of and in the course of assigned employment \u201ccontinue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this article,\u201d and also that \u201cno award other than burial expenses shall be made for any prisoner whose accident results in death.\u201d It was held that plaintiffs asserted claim was authorized by the Tort Claims Act. Decision turned on the significance of the 1957 amendment to G.S. 97-13(c), viz.: \u201cThe provisions of G.S. 97-10 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers.\u201d (Our italics.) The Tort Claims Act was not amended. It was held that G.S. 97-13 (c), originally and after the amendment, presented \u201ca problem in legal quadratics,\u201d and that the plain provisions of the Tort Claims Act were not repealed by \u201can amendment tucked away in a jumbled and confusing subsection.\u201d Too, it was held that the payment of burial expenses was not payment of compensation within the meaning of the 1957 amendment. Whether the prisoner, if he had survived his injury, would be entitled to compensation under G.S. 97-13 (c) could not be determined until the date of his discharge. Definitely, nobody, under any circumstances; was entitled to any compensation under G.S. 97-13 (c) on account of his death while a prisoner. We find nothing in Ivey v. Prison Department, supra, that would support plaintiff\u2019s asserted right of action under G.S. 28-173.\nIt is noteworthy that acceptance of plaintiff\u2019s theory would lead to \u201cthe most incongruous results.\u201d Bigby v. Pelican Bay Lumber Co., supra. In case of fatal injury, no employer, would be immune from liability based on negligence. Liability would depend solely upon whether the injured employee perchance was survived by dependents. If so, recovery by dependents would be limited to compensation provided by the Workmen\u2019s Compensation Act but non-dependent next of kin could be the beneficiaries of the unrestricted recovery permissible in a wrongful death action. Moreover, for the interval, if any, between compensable injury and death within two years thereafter, see G.S. 97-38, the exclusive remedy of the injured employee would be a claim against his employer and its insurance carrier under the Workmen\u2019s Compensation Act. However, in such case, if plaintiff\u2019s theory were accepted, in the event the employee was survived by non-dependent next of kin, the administrator would be entitled to maintain an action under G.S. 28-173 on account .of death resulting from such compensable injury.\nThe statutory law in force on August 26, 1964, controls decision on this appeal. 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. The fact that Horney\u2019s father, mother and sisters, nondependents, happened to be his next of kin, has no significance to decision on this appeal. The asserted basis of plaintiff\u2019s theory of. recovery would apply equally if Horney\u2019s next of kin, nondependents, were remote collateral kin.\nFor reasons stated, the judgment of the court below is affirmed.\nAffirmed.\nMoore, J., not sitting.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Schoch, Schoch & Schoch for plaintiff appellant.", "Jordan, Wright, Henson & Nichols and Edward L. Murrelle for Meredith Swimming Pool Company, Inc., defendant appellee.", "Booth, Osteen, Fish & Adams for David Meredith, defendant appellee." ], "corrections": "", "head_matter": "J. A. HORNEY, Administrator of the Estate of RICHARD EUGENE HORNEY, Deceased, v. MEREDITH SWIMMING POOL COMPANY, INC., and DAVID MEREDITH.\n(Filed 16 June, 1966.)\n1. Death \u00a7 S\u2014\nThe right of action for wrongful death is purely statutory and the statute confers the right of action solely upon the personal representative to recover only in those instances in which the decedent, had he lived, would have been entitled to maintain an action for damages. G.S. 28-173.\n2. Same; Master and Servant \u00a7 86\u2014\nThe personal representative of a deceased employee may not maintain an action for wrongful death of the employee against a fellow employee and the employer for negligent injury causing death inflicted by the fellow employee while both employees were acting in the course of their employment. G.S. 97-10.1.\n3. Same\u2014\nThe fact that an employee, fatally injured by the negligence of a fellow employee in the course of their employment, leaves no one either wholly or partially dependent upon him, so that under G.S. 97-40, as then in effect, no one could claim compensation under the Workmen\u2019s Compensation Act, does not entitle the personal representative of the employee to maintain an action for wrongful death.\nMoore, J., not sitting.\nAppeal by plaintiff from Shaw, J., February 14, 1966, Civil Session of GuileoRD, Greensboro Division.\nAction for damages for wrongful death, heard below on demurrers to (amended) complaint.\nPlaintiff\u2019s allegations, in brief summary, are narrated below.\nThe individual defendant (Meredith) was the president of the corporate defendant (Pool Company). Pool Company had more than five employees. Horney, plaintiff\u2019s intestate, and Homer Wood (Wood) were employees of Pool Company; and, on the occasion of Horney\u2019s death, both were acting within the course and scope of their employment by Pool Company.\nDefendants, knowing that Horney and Wood were totally unskilled in the field of electronics, ordered them, on August 26, 1964, to proceed to a Greensboro residence, then and there to make electrical connections to an underwater light. While waiting for Wood to make the connections, Horney was on the diving board of the pool. Wood negligently and carelessly connected the wires so that the live or \u201chot wire\u201d from the electrical supply was connected to the \u201cground wire\u201d of the line. When Wood turned the power supply on, the entire pool with its fixtures, including the diving board, was energized, as a result of which Horney was electrocuted and drowned.\nHorney was survived by \u201chis father, his mother, and two sisters only, no one of whom was in any degree dependent for support on the earnings of decedent, either in fact or within the scope of the definitions of \u2018whole or partial dependents\u2019 as the same are set forth\u201d in the provisions of the North Carolina Workmen\u2019s Compensation Act, specifically G.S. 97-38 and G.S. 97-40, \u201cas the same were in force and effect on August 26, 1964.\u201d\nPlaintiff prays that he recover damages in the amount of $200,-000.00.\nSeparate demurrers were filed by defendants. Each defendant demurred on the ground the court did not have jurisdiction of the subject matter. The court sustained the demurrers and dismissed the action. Plaintiff excepted and appealed.\nSchoch, Schoch & Schoch for plaintiff appellant.\nJordan, Wright, Henson & Nichols and Edward L. Murrelle for Meredith Swimming Pool Company, Inc., defendant appellee.\nBooth, Osteen, Fish & Adams for David Meredith, defendant appellee." }, "file_name": "0521-01", "first_page_order": 557, "last_page_order": 564 }