Wilson v. UTAH CONSTRUCTION COMPANY

89 S.E.2d 864 (1955) 243 N.C. 96

Betty WILSON, Widow and Guardian for Larry Joe Phillips, William Randle Wilson, Janice Jean Wilson, and Beverly Ann Wilson, Minor Children, George T. Blackburn, Next Friend for Verline Mealer, Billy Mealer (Wilson), Jeannine Mealer, and Wendom Mealer York, Minor Children, J. T. Wilson, Admr. of Estate, Billy Wilson, Deceased (Employee), claimants
v.
UTAH CONSTRUCTION COMPANY (Employer), Employers Mutual Liability Insurance Company (Carrier).

No. 399.

Supreme Court of North Carolina.

November 9, 1955.

Blackburn & Blackburn, Henderson, for appellant.

Charles E. Hamilton, Jr., and Wade W. Mitchem, Jr., Gastonia, for Betty Wilson, widow and guardian for Larry Joe Phillips, William Randle Wilson, Janice Jean Wilson and Beverly Ann Wilson, minor children, appellee.

Perry & Kittrell, Henderson, for defendant appellees.

BARNHILL, Chief Justice.

Counsel for the Mealers moved the court below to dismiss the appeal of the Wilsons from the award made by the Industrial Commission. The motion is grounded upon the fact that the bill of exceptions and assignments of error relied on by the Wilsons were not served together with the service of the notice of appeal. The guardian excepts to the ruling of the court denying the motion. The exception is without merit.

The award was made 3 January 1955, and notice of appeal was served 24 January 1955, within thirty days after the entry of the award. The Commission then had sixty days within which to prepare and furnish the appellant with a certified transcript of the record in the case for filing in the Superior Court. G.S. § 97-86. Since the bill of exceptions and assignments of error must include the page of the record at which each exception may be found, it was impossible for the Wilsons to serve the assignments of error at the time they served notice of their appeal, and the Legislature did not intend to require the impossible.

The Industrial Commission furnished the Wilsons with a certified copy of the record on 16 March 1955, and the Wilsons filed their assignments of error 21 March 1955 along with the certified copy of the record. Thus it appears that the assignments of error were prepared and filed within a reasonable time after the receipt of the record. This is all that the law requires.

While it appears that there was born to the common law wife of the employee a child shortly after his death, there is no sufficient evidence in the record tending to show that this child was an acknowledged illegitimate child of the deceased so as to entitle it to compensation in accord with our opinion in Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801.

When an employee of a corporation which is subject to the Workmen's Compensation Act suffers death from an accident arising out of and in the course of his employment, and he leaves a widow and children him surviving, the widow and children "shall be conclusively presumed to be wholly dependent for support upon the deceased employee." G.S. § 97-39. And they "shall be entitled to receive the entire compensation payable share and share alike to the exclusion of all other persons." (Italics supplied.) G.S. § 97-38(1).

There is nothing in the record which would tend to preclude the right of the widow to receive her share of the compensation. And even if we should concede that she is precluded, the three children would receive the compensation. Thus, the Mealers would not be placed in any better position by such a holding.

The Mealers were in no sense dependents within the meaning of the Workmen's Compensation Act. The arrangement between the employee and the mother of the Mealer children was illicit, and his act in maintaining the children was purely voluntary. He was not under any legal obligation so to do. Decision as to them is controlled by what is said by Winborne, J., speaking for the Court, in Fields v. Hollowell & Hollowell, 238 N.C. 614, 78 S.E.2d 740.

It may be noted that the Workmen's Compensation Act was substituted for the old Wrongful Death Act where the death results from one of the risks of industry. Under the old procedure an administrator sued and, upon recovery, distributed the proceeds among those entitled thereto under the law. Under the new procedure those who are entitled to the benefits make claim directly before the Industrial Commission. If the employee leaves no widow or children surviving, that is, "in all other cases", actual dependency must be established, and if there was no one actually dependent upon the employee at the time of his death, the compensation is to be commuted and paid to the next of kin. G.S. §§ 97-39, 97-40.

For the reasons stated judgment entered in the court below is affirmed on authority of Fields v. Hollowell & Hollowell, supra.

Affirmed.