Parsons v. Swift & Co.

68 S.E.2d 296 (1951) 234 N.C. 580

PARSONS et al.
v.
SWIFT & CO. et al.

No. 601.

Supreme Court of North Carolina.

December 12, 1951.

Addison Hewlett, Jr., Solomon B. Sternberger, Wilmington, for plaintiff appellee.

James & James, Wilmington, for defendants appellants.

WINBORNE, Justice.

While the record on this appeal shows that defendants based their appeal from the Industrial Commission to the Superior Court upon fifteen specific exceptions to the findings of fact and conclusions of law on which the decision and award of the Industrial Commission were made to rest, the record fails to show that the Judge of Superior Court ruled on any of the specific exceptions so filed by defendants, and there is in the record no exception to the failure of the Judge to make such specific rulings. Hence the exceptions so filed by defendants are not presented on this appeal. And the exception "to the rulings of the court sustaining the findings of fact and conclusions of law of the Full Commission", as shown in the appeal entries, is "insufficient to bring up for review the findings of fact or the evidence upon which they are based". It is a broadside which fails to point out the particular ruling to which the exception is taken. See Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609, and cases there cited. See also Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

Moreover, the exceptions "to the affirming of the decision and award of the Full Commission" and "to the judgment and the signing thereof", as appear in the appeal entries, constitute no more than an exception to the signing of the judgment. And such exception raises only the question as to whether or not the facts as found by the Industrial Commission, and approved by the Judge of Superior Court, are sufficient to support the judgment. That is, such exception challenges only the conclusions of law upon the facts so found. See Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643. Simmons v. Lee, supra, and cases cited, and numerous others.

In the light of these decisions we hold that the facts found by the Industrial Commission are sufficient to support an award of compensation for the death of James Parsons under the provisions of the North Carolina Workmen's Compensation Act.

But a question of law arises upon the face of the record as to whether or not the partially dependent widowed mother of the deceased employee and his partially dependent brother may elect to take as next of kin rather than as partial dependents.

This is the second question raised by defendants. The answer is "No".

G.S. § 97-38 in pertinent part provides: "* * * If the employee leaves dependents only partly dependent upon his earnings for support at the time of the injury, the weekly compensation to be paid, as aforesaid, shall equal the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents bears to the annual earnings of the deceased at the time of his injury: Provided, when the partial dependents are all next of kin as defined in [G.S.] § 97-40, and all so elect, they may receive benefits under § 97-40 instead of under this section. * * *"

It is seen that the election provided for in the proviso in the above statute G.S. § 97-38 is available when the partial dependents are all next of kin as defined in G.S. § 97-40.

And G.S. § 97-40 provides in pertinent part: If the deceased employee leaves no dependents the employer shall pay to the next of kin as herein defined the commuted amount provided for in § 97-38 for whole dependents; but if the deceased left no next of kin as herein defined, then said commuted amount shall be paid to the Industrial Commission to be held and disbursed by it in the manner hereinafter provided; one-half of said commuted amount shall be retained by the Industrial Commission and the other one-half paid to the personal representative of the deceased to be by him distributed to the next of kin as defined in the Statutes of Distribution; but if there be no next of kin as defined in the Statutes of Distribution, then the personal representative shall pay the same to the Industrial Commission after payment of costs of administration. For purpose of this section the term "next of kin" shall include only father, mother, widow, child, brother, or sister of the deceased.

Appellant contends, and we think rightly so, that under the facts found the mother of James Parsons is his next of kin within the meaning of the Workmen's Compensation Act. G.S. § 97-40. This statute, as an act of the General Assembly of North Carolina, P.L.1931, Chap. 274, Sec. 5, was applied by this court in Hamby v. Cobb, & Homewood, Inc., 214 N.C. 813, 1 S.E.2d 101.

In the Hamby case, supra, as the record on appeal shows, the Industrial Commission found that the employee, whose death resulted from injury by accident arising out of and in the course of his employment, died leaving his mother, his father being dead, but neither widow nor children; that his mother was not dependent on him for support; and that his mother was his next of kin. In accordance therewith an award was made to her and affirmed, on appeal thereto, by the Superior Court. And the case came to this Court on appeal.

And this court, in a Per Curiam opinion, held that the court below correctly ruled. Then the court quoted from Sec. 40: "``If the deceased employee leaves no dependents the employer shall pay to the next of kin as herein defined the commuted amount provided for in section thirty-eight of this act for whole dependents, etc. * * * For the purpose of this section the term "next of kin" shall include only the father, mother, widow, child, brother or sister of the deceased.'" The court then said: "The father being dead, the mother was the next of kin. We think the evidence clearly indicates that the deceased left no dependent or dependents and plaintiff, his mother, was the next of kin under the statute and entitled to the award."

True no reference is made to other kin enumerated in the statute. But the decision is significant that the father being dead, the mother is the next of kin. This is accordant with the statute of distribution, G.S. § 28-149, subd. 5 as interpreted by this court. See Wells v. Wells, 158 N.C. 330, 74 S.E. 114. In Re Estate of Pruden, 199 N.C. 256, 154 S.E. 7.

Moreover, it seems manifest that the General Assembly in defining "next of kin" for purpose of G.S. § 97-40 intended to limit recovery to persons within that group, to the exclusion of other more remote next of kin under the statute of distribution. Article 17 of Chap. 28 of General Statutes. Indeed, the "next of kin" are named in the alternative,—clearly indicating that it was intended that those named should not necessarily be of equal degree.

For error in the respect above indicated the case will be remanded for further proceeding in accordance with the decision here made.

Error and remanded.