Samuel H. JOHNSON, Ancillary Administrator of the estate of Ernest L. Wilborn, Plaintiff,
v.
Sanford W. CATLETT, Original Defendant, and
J. P. Stevens & Company, Inc., and James A. Patterson, Additional Defendants.
No. 459.
Supreme Court of North Carolina.
June 7, 1957.*460 Joyner & Howison, Raleigh, Roland C. Braswell, Goldsboro, for appellant.
Armistead J. Maupin, Raleigh, for J. P. Stevens & Company, Inc., appellee.
Battle, Winslow & Merrell, Rocky Mount, for James A. Patterson, appellee.
DENNY, Justice.
The question posed for determination is this: Where plaintiff's intestate, a resident of Virginia, employed and working in that State under its Workmen's Compensation Laws, was killed while a passenger in a North Carolina automobile accident while temporarily in North Carolina in the course and scope of his Virginia employment, and an award is made to his beneficiaries by his employer pursuant to the Virginia Workmen's Compensation Act, and thereafter an action is begun in North Carolina for wrongful death against the alleged third party tort-feasor, may such defendant pursuant to G.S. § 1-240 cause the driver of the automobile in which plaintiff's intestate was riding and the employer of such driver be joined as joint tort-feasors and seek contribution against them when such other driver was a fellow-servant of plaintiff's intestate and the employer was also the employer of plaintiff's intestate?
Section 65-37 of the Virginia Workmen's Compensation Act, codified in Volume 9 of the 1950 Code of Virginia, reads as follows: "The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common-law or otherwise, on account of such injury, loss of service or death."
The Supreme Court of Appeals of Virginia, in the case of Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530, 533, held that the above statute "deprives the employee or his personal representative of a common-law right of action for damages against the employer in a particular class of cases, that is, where the injury or death is from an accident arising out of and in the course of the employment, because the Act gives to the employee or his dependents in lieu thereof the right to an award of compensation."
In the case of Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, 75, it is said: "It seems clear that it was the legislative intent to make the act exclusive in the industrial field so that, in the event of an industrial accident, the rights of all those engaged in the business would be governed solely thereby. The remedies afforded the employee under the act are exclusive of all his former remedies within the field of the particular business, but the act does not extend to accidents caused by strangers to the business. If the employee is performing the duties of his employer and is injured by a stranger to the business, the compensation prescribed by the act is available to him, but that does not relieve the stranger of his full liability for the loss, and, if he is financially responsible, there is no reason to cast this loss as an expense upon the business. * * *
"By analogy, loss by damage to an employee caused by the act of another employee *461 is a loss within the field of industrial accidents intended by the act to be borne by industry as an industrial loss without opportunity for recoupment. What other meaning can be given to the phrase in section 11, `those conducting his business'?"
Section 11, referred to in the above case, is now codified as section 65-99 in the 1950 Code of Virginia, and reads as follows: "Every employer subject to the compensation provisions of this Act shall insure the payment of compensation to his employees in the manner hereinafter provided. While such insurance remains in force he or those conducting his business shall only be liable to an employee for personal injury or death by accident to the extent and in the manner herein specified." The employer in this case was so insured.
The Virginia Court pointed out in the Feitig case that the North Carolina Workmen's Compensation Act contains a provision similar to section 11 of the Virginia Code, and a provision on subrogation similar to section 12 (now codified as section 65-38 in the 1950 Code of Virginia). The Court observed, however, that in the interpretation of provisions similar to those contained in section 11 of the Virginia Act, we had not followed the usual construction given to such provisions, citing Tscheiller v. Weaving Co., 214 N.C. 449, 199 S.E. 623. Even so, we have now adopted the majority view in this respect. See Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106; Bass v. Ingold, 232 N.C. 295, 60 S.E.2d 114; Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6.
The Virginia Workmen's Compensation Act provides that the payment of a claim for injury or death by the employer, shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person might have against a third party. It further provides that any amount collected by the employer in excess of the amount paid by the employer, or for which he is liable, shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less such amounts as are paid by the employer for reasonable expenses and attorney fees. Section 65-38, 1950 Code of Virginia. It is likewise provided that these rights shall inure to like extent to an insurance carrier when it has paid an employer's obligation under the Act. Section 65-108, 1950 Code of Virginia.
Even so, it has been held in Virginia that, notwithstanding the assignment provisions in the Compensation Act, the employee or his personal representative may sue a third party. Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575, 580.
In the last cited case the Virginia Court said: "The Act does not deny an injured employee the right to pursue his action at law against a negligent third party. The rights and remedies granted under section 65-37 are exclusive only as to an employee and his employer, and only his right to sue his employer for damages is barred by the acceptance of compensation under the Act. Smith v. Virginia Ry. & Power Co., 144 Va. 169, 131 S.E. 440; Chesapeake & O. Ry. Co. v. Palmer, 149 Va. 560, 140 S.E. 831; Noblin v. Randolph Corp., 180 Va. 345, 23 S.E.2d 209."
When any question arises as to the law of the United States, or of any other State or Territory of the United States, or of the District of Columbia, or of any foreign country, this Court is required by statute to take notice of such law in the same manner as if the question arose under the law of this State. G.S. § 8-4. See also 28 U.S.C.A. § 1738, adopted by the Congress of the United States on 25 June 1948.
It would seem that the question posed on this appeal requires an answer to these questions: (1) At the time this action was instituted, could it have been maintained against these additional parties? (2) Since the plaintiff's intestate and the additional parties were bound by the exclusive provisions of the Virginia Workmen's Compensation *462 Act, and the claim resulting from the death of plaintiff's intestate having been adjudicated thereunder, can these additional defendants be held as joint tort-feasors in this action? It appears that each of these questions must be answered in the negative.
In Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S. Ct. 208, 211, 88 L. Ed. 149, the employer employed Hunt in Louisiana as a laborer in connection with its business of drilling oil wells. In the course of his employment Hunt, a Louisiana resident, was sent to Texas and while working there for his employer on an oil well he was injured. He sought and procured in Texas an award of compensation for his injury under the provisions of its Workmen's Compensation Law, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., and the employer's insurance carrier made the payments as required by the award. Hunt then brought a claim for his injury under the Louisiana Workmen's Compensation Law, LSA-R.S. 23:1021 et seq., which was more liberal than the Texas law. The employer pleaded the Texas award as being res judicata. Hunt, however, obtained a judgment pursuant to the provisions of the Louisiana statute, after deducting the amount of the Texas payments. The Louisiana Court of Appeals, 10 So. 2d 109, affirmed and the Supreme Court of Louisiana refused writs of certiorari and review. The Supreme Court of the United States granted certiorari. Chief Justice Stone, speaking for the Court, held that Hunt was free to pursue his remedy in either State but, having chosen to seek it in Texas where the award was res judicata, the full faith and credit clause precluded him from again seeking a remedy in Louisiana upon the same grounds. It is also stated in the opinion, "A compensation award which has become final `is entitled to the same faith and credit as a judgment of the court.' See Ocean Accident & Guarantee Corp. v. Pruitt, Tex.Com.App., 58 S.W.2d 41, 44, 45, holding that an award is res judicata, not only as to all matters litigated, but as to all matters which could have been litigated in the proceeding with respect to the right to compensation for the injury." Cf. Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140, and Carroll v. Lanza, 349 U.S. 408, 75 S. Ct. 804, 99 L. Ed. 1183.
We hold that the award made by the Industrial Commission of Virginia is binding on the plaintiff in this action and is res judicata as to all claims against these additional defendants. Therefore, such award must be given full faith and credit in this jurisdiction. Constitution of the United States, Article 4, section 1, 28 U.S. C.A. § 1738. Furthermore, the Supreme Court of Appeals of Virginia has expressly held that an employee of a business covered by the Virginia Workmen's Compensation Act cannot maintain a suit against a fellow-servant for injuries caused by the latter's negligence. Coker v. Gunter, 191 Va. 747, 63 S.E.2d 15; Phillips v. Brinkley, 194 Va. 62, 72 S.E.2d 339. We have likewise so held in Essick v. City of Lexington, supra; Bass v. Ingold, supra; Warner v. Leder, supra.
As to the second question, it is settled law with us that to entitle the original defendant in a tort action to have a third party made an additional party defendant under the provisions of G.S. § 1-240 to enforce contribution, the facts must be such that the plaintiff, had he desired so to do, could have joined such additional party or parties as defendants in the action. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768; Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 737, 149 A.L.R. 1183.
It was pointed out in the last cited case by Stacy, C. J., that, "a contingent or inchoate right to enforce contribution arises to each defendant tort-feasor at the time of the institution of the action to recover on the joint tort. As long then as the plaintiff's *463 right to recover in such suit remains undetermined, the contingent or inchoate right of each defendant tort-feasor to enforce contribution continues, and, on rendition of judgment in favor of the plaintiff, this right matures into a cause of action. 13 Am.Jur. 51. Thus it is rooted in and springs from the plaintiff's suit and projects itself beyond that suit, but it is not dependent on the plaintiff's continued right to sue all the joint tort-feasors."
In the instant case, however, the plaintiff had no right to bring an action at commonlaw or otherwise against these additional defendants at the time this action was instituted.
In Wilson v. Massagee, supra, Mrs. Verna L. Wilson, administratrix of Arthur E. Wilson, brought an action for the wrongful death of her intestate who was killed while engaged in his duties as an engineer of the Southern Railway Company, against Shirley Massagee and the Sinclair Refining Company. The Shell Oil Company and the Southern Railway Company were made parties defendant on motion of the original defendants, pursuant to the provisions of G.S. § 1-240. The Southern Railway Company moved to dismiss as to it on the ground that the rights and obligations of the plaintiff's intestate to the Southern Railway Company arose out of and are exclusively controlled and defined by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the said Act being exclusive of all other rights and remedies between said parties in the premises. Winborne, J., now C. J., in speaking for the Court, said [224 N.C. 705, 32 S.E.2d 340]: "* * * the right of plaintiff to sue the original defendants for damages for the death of her intestate arose upon an entirely separate and distinct statute from that under which her right to sue the railway company arose. The plaintiff has no right, under the Federal Employers' Liability Act, to sue and maintain an action against the original defendants, nor does she have any right, under the State statute giving right of action for wrongful death, to sue and maintain an action against the railway company. Hence, plaintiff did not have a common legal right of action against the original defendants and the Railway Company."
This Court has expressly held that an employer who has discharged his obligation to his injured employee or his personal representative, under the provisions of our Workmen's Compensation Act, is not liable as a joint tort-feasor to such employee or his personal representative. That where such employee or his personal representative brings an action at common-law for the employee's injury or death against a third party, a motion of the defendant that the employer of the injured or deceased employee be made a party as joint tortfeasor with them, should be denied. Brown v. Southern R. Co., 202 N.C. 256, 162 S.E. 613; Hoover v. Globe Indemnity Co., 202 N.C. 655, 163 S.E. 758; Eledge v. Carolina Power & Light Co., 230 N.C. 584, 55 S.E.2d 179; Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886; Hunsucker v. High Point Bending & Chair Co., supra. Since we are required by statute to take notice of the provisions of the Virginia Workmen's Compensation Act, we know of no reason why these provisions, which are substantially like those in our own Compensation Act, should not be given a similar construction as to its bearing on the right to bring in additional parties as joint tort-feasors, where the employer of plaintiff's intestate has discharged its liability under the Virginia Act.
The cases of Farr v. Babcock Lumber & Land Co., 182 N.C. 725, 109 S.E. 833, Johnson v. Carolina C. & O. R. Co., 191 N.C. 75, 131 S.E. 390, and Lee v. Chemical Construction Co., 200 N.C. 319, 156 S.E. 848, cited by the original defendant, are distinguishable and not controlling on the facts revealed on the present record.
The ruling of the court below is
Affirmed.