The plaintiff instituted this action against the defendant, alleging that he suffered a personal injury due to the negligent operation of certain box cars. An answer was filed denying the allegations of negligence, and thereafter the defendant filed a plea in abatement and motion to dismiss. In substance the plea in abatement alleges that the plaintiff at the time of his injury was an employee of W. H. Griffin Company, and that he and the employer had accepted the provisions of the Workmen's Compensation Act. In support of the plea the defendant offered in evidence an "agreement for compensation for disability, dated 31 May, 1930." This purported agreement was set forth upon a prepared form showing that the date of the injury was 18 March, 1930, and that the average weekly wages of the employee was $35.00 per week. It was further agreed that the employer should pay to the plaintiff employee a certain compensation therein specified. On the same day the sum of $148.50 was paid to the plaintiff.
The compensation agreement was duly filed with the Industrial Commission, but said Commission did not approve the same. When the *Page 720 cause came on to be heard the Indemnity Insurance Company of North America appeared and filed a petition setting out that it was the insurer of the plaintiff, and that it had paid out the sum of $148.50 as compensation together with a medical bill of $20.00, and requesting that it be permitted to intervene as party plaintiff in the cause. The trial judge denied the plea in abatement, allowed the petition of the insurance carrier to become a party, and granted the motion of the plaintiff making the receivers of the defendant parties to the action.
From the judgment so rendered the defendant appealed. Does the compensation agreement constitute an award within the meaning of section 11 of the Compensation Act?
This suit was instituted on 4 April, 1930, to recover damages for personal injury. Subsequently to wit, on 31 May, 1930, a compensation agreement was filed with the Industrial Commission, but said Commission either failed or declined to approve the same. Section 11 of the Compensation Act permits an employee to recover damages for injury against "a third person or persons before an award is made under this act and prosecute the same to its final determination; but either an acceptance of an award hereunder, or the procurement of a judgment in an action at law shall be a bar to proceeding further with alternate remedy." The question then arises: What is an award as contemplated by the statute? Section 58 prescribes the legal essentials of an award. An award is conceived by the statute to be a present determination of the merits of the claim after hearing of the parties and their witnesses. It must be `filed with the record of proceedings, and copy of the award shall immediately be sent to the parties in dispute." Consequently the award must be in writing and in controverted cases must be accompanied by "statement of findings of fact, rulings of law and other matters pertinent to the questions at issue." Manifestly no award has been made to the plaintiff.
While the terms of the statutes are plain, it is perhaps not amiss to note that courts in other jurisdictions have held that a compensation agreement filed but not approved does not constitute an award. See Brown v.R. R., ante, 256; Bruce v. Stutz Motor Co., 148 N.E. 161; American MutualLife Ins. Co. v. Hamilton, 135 S.E. 21.
By virtue of the express terms of the statute the right of the carrier does not arise until an award has been made. Hence the trial judge erred in permitting the carrier to become a party to the action. *Page 721
It is contended that it was error to make the receivers of defendant parties to the suit. Apparently the suit was begun before receivers were appointed for the defendant. However, it is to be assumed in the absence of facts to the contrary that the judgment was supported by the facts before the court at the time. Moreover if the action was commenced before receivers were appointed, it was entirely proper that they should be made parties. Black v. Power Co., 158 N.C. 468, 74 S.E. 468.
Modified and affirmed.