Cox v. Pitt County Transportation Company , 259 N.C. 38 ( 1963 )

129 S.E.2d 589 (1963) 259 N.C. 38

Annie Lee COX, Administratrix of the Estate of Simon W. Cox, Deceased, and Guardian of Simon Ray Cox and others, minor dependents of Simon W. Cox, Deceased,
v.
PITT COUNTY TRANSPORTATION COMPANY, Inc., and Fidelity & Casualty Company of New York, Compensation Carrier.

No. 89.

Supreme Court of North Carolina.

March 6, 1963.

Lewis G. Cooper and Charles H. Whedbee, Greenville, for plaintiffs.

Teague, Johnson & Patterson, Raleigh, for defendants.

DENNY, Chief Justice.

The primary question presented on this appeal is whether our Declaratory Judgment Act may be used to determine whether or not the employer's insurance carrier is entitled to the right of subrogation against the funds received from the third party, tort feasor, under the provisions of G.S. § 97-10.2, or does the Industrial Commission have the exclusive original jurisdiction to determine the question posed herein.

It is pointed out in G.S. § 97-10.2(f) (1):

"If the employer has filed a written admission of liability for benefits under this chapter with, or if an award final in nature in favor of the employee has been entered by, the Industrial Commission, then any amount obtained by any person by settlement with, judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:

"a. First to the payment of actual court costs taxed by judgment.

"b. Second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and such fee shall not be subject to the provisions of § 90 of this chapter but shall not exceed one third of the amount obtained or recovered of the third party.

"c. Third to the reimbursement of the employer for all benefits by way of compensation or medical treatment expense paid or to be paid by the employer under award of the Industrial Commission.

"d. Fourth to the payment of any amount remaining to the employee or his personal representative." (Emphasis added.)

G.S. § 97-91 provides: "All questions arising under this article if not settled by agreements of the parties interested therein, with the approval of the Commission, shall be determined by the Commission, except as otherwise herein provided." Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488.

"As a general rule where a statute provides a special form of remedy for a specific type of case, the statutory remedy must be followed, and under such circumstances a declaratory judgment will not be granted. This is especially so where the statutory remedy is exclusive * * *." 26 C.J.S. Declaratory Judgments § 20, page 89.

"A court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented, if the effect would be to interfere with the right of the parties to appeal to the court given jurisdiction in that particular matter by the statute. Likewise, a declaration will not be made where the purpose is to affect proceedings which may be taken before a public board which has full power to act in the matter and which would not be bound by the declaratory judgment. * * *" 16 Am.Jur., Declaratory Judgments, section 21, page 295.

In the case of Prudential Insurance Co. v. Powell, 217 N.C. 495, 8 S.E.2d 619, the plaintiff instituted a declaratory judgment proceeding in the Superior Court to have determined the question whether it should contribute to the unemployment compensation plan in behalf of one of its agents, which it claimed was an independent contractor. This Court held the defendant's demurrer interposed in the Superior Court was properly sustained. Inter alia, this Court said: "Where an administrative remedy is provided by statute for revision, against collection, or for recovery of taxes assessed or collected, the taxpayer must first exhaust the remedy thus provided before the administrative body, otherwise he cannot be heard by a judicial tribunal to assert its invalidity. Metro-Goldwyn-Mayer Distributing Corp. v. Maxwell, 209 N.C. 47, 182 S.E. 724; Hart v. Com'rs., 192 N.C. 161, 134 S.E. 403 [405]; Maxwell v. Hinsdale, 207 N.C. 37, 175 S.E. 847. He must not only resort to the remedies that the Legislature has established but he must do so at the time and in the manner that the statute and proper regulations provide."

In Bragg Development Co. v. Braxton, 239 N.C. 427, 79 S.E.2d 918, the plaintiff brought an action under the Declaratory Judgment Act to determine the right of the county to collect a certain tax. The Court said: "If a tax is levied against a taxpayer which he deems unauthorized or unlawful, he must pay the same under protest and then sue for its recovery. G.S. § 105-406; Hunt v. Cooper, 194 N.C. 265, 139 S.E. 446. And if the statute provides an administrative remedy, he must first exhaust that remedy before resorting to the courts for relief."

In the case of Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504, the plaintiff, a physician, rendered services to an injured employee without knowledge that the injury was covered by the Compensation Act, and thereafter upon discovery that the injury was compensable, filed a claim for such services with the Industrial Commission. The Industrial Commission approved a sum less than the full amount of the claim. The plaintiff accepted the amount approved without requesting a hearing by the Industrial Commission and then brought an action against the injured employee to recover the balance claimed. The Court held that the plaintiff had not exhausted his remedies before the Industrial Commission and was barred by the terms of the Act. "* * * (S)ince the act provides that fees for physicians shall be subject to the approval of the Commission, and makes it a misdemeanor for any one to receive any fee for services so rendered unless it be approved by the Commission, any promise made by defendant, the employee, to pay plaintiff the balance due on his account is unenforceable and void."

In an action instituted in the Superior Court under the Declaratory Judgment Act or otherwise, when the pleadings disclose an employee-employer relationship exists so as to make the parties subject to the provisions of the Workmen's Compensation Act, dismissal is proper, for the Industrial Commission has exclusive jurisdiction in such cases. Powers v. Robeson County Memorial Hospital, 242 N.C. 290, 87 S.E.2d 510; Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623. Moreover, the Superior Court can acquire jurisdiction in such cases only when a party to such proceeding duly appeals from the Commission to said court on matters of law involved therein. Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799. To like effect are Moore v. Louisville Hydro-Electric Co., 226 Ky. 20, 10 S.W.2d 466 and American Casualty Co. of Reading v. Kligerman, 365 Pa. 168, 74 A.2d 169.

As hereinbefore pointed out, it is mandatory under the provisions of the Workmen's Compensation Act that any recovery against a third party by reason of an injury to or death of an employee subject to the Act, the proceeds received from such settlement with or judgment against the third party, shall be disbursed according to the provisions of the Workmen's Compensation Act.

Therefore, the judgment of the court below is

Affirmed.