Smith v. Allied Exterminators, Inc.

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184 S.E.2d 296 (1971)

279 N.C. 583

Hallie SMITH, Mother, et al., Employee-Plaintiff, v. ALLIED EXTERMINATORS, INC., Employer and Bituminous Casualty Corporation, Carrier Defendants.

No. 50.

Supreme Court of North Carolina.

November 10, 1971.

*298 Powe, Porter & Alphin, by Willis P. Whichard, Durham, for plaintiff.

Dupree, Weaver, Horton, Cockman & Alvis, by Walter L. Horton, Jr., Raleigh, for defendants.

LAKE, Justice.

G.S. § 97-83 provides that if the employer and the dependents of the employee fail to reach an agreement in regard to compensation payable under the Workmen's Compensation Act within fourteen days after the "employee" (obviously a misprint intended to read "emlpoyer") has knowledge of the death, either party may make application to the Industrial Commission for a hearing in regard to matters at issue, and for a ruling thereon, whereupon the Commission shall set the date for a hearing and notify the parties thereof. G.S. § 97-84 provides that the Commission shall hear the parties at issue and determine the dispute.

In the present case, no agreement having been reached within the specified time and the carrier having made such application to the Commission, the Commission set the matter for hearing and gave notice to the parties, including the father. The Commission, at such hearing, had jurisdiction to determine the rights of the father and mother, respectively, to benefits under the Act by reason of the death of their son. See, Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252. Thus, the father is not barred from participation in benefits payable under the Act by reason of his failure to file a claim therefor, but he is barred by the Commission's determination that he is not entitled to such benefits by reason of his abandonment of the deceased employee during the latter's minority, unless that determination be error:

G.S. § 97-38 provides:

"If death results approximately from the accident * * * the employer shall pay or cause to be paid, subject to the provisions of the other sections of this article, weekly payments of compensation equal to sixty percent (60%) of the average weekly wages of the deceased employee at the time of the accident * * * for a period of three hundred and fifty weeks * * * to *299 the person or persons entitled thereto as follows: * * *."

G.S. § 97-40 provides:

"Subject to the provisions of G.S. 97-38, if the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under G.S. 97-38 to whole dependents shall be commuted to its present value and paid in a lump sum to the next of kin as herein defined. For purposes of this section and G.S. 97-38, `next of kin' 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, the order of priority among them shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate. * * (Emphasis added.) "If 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."

In the present case, it is stipulated, and the Commission has found that the deceased employee left no one who was dependent upon him, wholly or partially. Thus, G.S. § 97-40 determines the person or persons entitled to receive the death benefits provided in the Act, but the amount payable to the person or persons entitled thereto is determined by G.S. § 97-38, commuted to its present, lump sum value. When, as here, the deceased employee left no dependent, whole or partial, the amount payable is not reduced from the amount which would have been payable had the deceased employee left a person wholly dependent upon him unless there is no person surviving who falls within the term "next of kin," as defined in G.S. § 97-40. Here, such a person does survive. Therefore, the amount to be paid is the full amount which would have been payable had the deceased left a person wholly dependent upon him. The only question remaining is, To whom is this sum payable?

G.S. § 97-40 provides that the next of kin includes "child, father, mother, brother or sister" of the deceased. Obviously, however, where the deceased leaves surviving him a person or persons in two or more of these categories of relationship, the benefits are not distributed among all of such surviving "next of kin." In that event, the statute directs the Commission to "the general law applicable to the distribution of the personal estate of persons dying intestate" to determine "the order of priority" among these several persons. The meaning of an "order of priority" is that the person or persons in one category takes to the exclusion of the others.

The determination of the taker or takers is to be made in accordance with the general law governing the distribution of the personal property of the deceased employee, assuming he died intestate, leaving only his father, mother and two brothers surviving him. This is not because the benefits under the Act are or become part of the assets of the estate of the decedent. They do not. The Commission is directed to the general law governing intestate succession simply because, for this purpose only, the general law of intestate succession is incorporated by reference into G.S. § 97-40.

Turning to the general law governing intestate succession to personal property, we find that, nothing else appearing, the father and the mother take in preference to the brothers. G.S. § 29-15(3). Thus, the brothers do not share in the *300 death benefits for which the employer or its carrier is liable. However, something else does appear. The father wilfully abandoned the care and maintenance of the deceased during the latter's minority. G.S. § 31A-2 provides that, in that event, the father loses all right to intestate succession in the distribution of the personal estate of his intestate, deceased child. Consequently, he does not share in the death benefits for which the employer or its carrier is liable under G.S. § 97-38. This leaves the mother, Hallie Smith, as the only person entitled. She takes the entire sum which would have been payable had there been a person wholly dependent.

The judgment of the Court of Appeals is, therefore, reversed, and this matter is remanded to that court for the entry of a judgment affirming the award of the Industrial Commission.

Reversed and remanded.