Summary
In Ivey the administrator of inmate Ivey's estate initiated an action against the North Carolina Prison Department for wrongful death.
Summary of this case from Blackmon v. N.C. Dept. of CorrectionOpinion
Filed 10 June, 1960.
1. State 3a — Under the State Tort Claims Act, the State waives its immunity from liability for injuries resulting from the negligence of its officers, employees and servants if under the same conditions a private person would be liable, and the Industrial Commission is given jurisdiction to hear and pass on such tort claims.
2. Same: Master and Servant 49 — The State Tort Claims Act expressly repealed all prior laws in conflict therewith, G.S. 143-291, and therefore this Act repealed any repugnant provisions of G.S. 97-13 (c) prior to the 1957 amendment.
3. Same — The personal representative of a prisoner who is fatally injured while performing an assigned task as the result of the negligent act of an employee of the State is entitled to prosecute a claim under the Tort Claims Act unless such right is withdrawn by the 1957 amendment to G.S. 97-13 (c).
4. Same — The 1957 amendment to G.S. 97-13 (c) (Chap. 809, Public Laws, 1957) does not have the effect of limiting the liability of the State for the death of a prisoner resulting from the negligence of a state employee to the payment of funeral expenses under G.S. 97-13 (c), but the personal representative of the deceased prisoner may prosecute a claim under the State Tort Claims Act, since the payment of funeral expenses, even though a part of compensation, is not the payment of compensation as defined in G.S. 97-2 (11) and the 1957 amendment applies by its express terms only to prisoners and discharged prisoners entitled to compensation.
5. Statutes 13 — Repeals by implication are not favored by the law and will not be indulged if there is any other reasonable construction.
APPEAL by plaintiff from Carr, J., November, 1959 Civil Term, CHATHAM Superior Court.
T. W. Bruton, Attorney General, Bernard A. Harrell, Trial Attorney, for the State.
Martin Whitley, By: Robert M. Martin for plaintiff, appellant.
RODMAN, J., dissenting.
DENNY, J., joins in dissenting opinion.
This proceeding was instituted before the North Carolina Industrial Commission under the Tort Claims Act to recover for the death of Cecil G. King alleged to have been caused by the negligent act of Edward Wright, an employee of the North Carolina Prison Department. The defendant filed a demurrer to the claim and asked that it be dismissed on the ground the personal representative of the deceased prisoner cannot maintain a tort claim action for that his remedy under the Workmen's Compensation Act is exclusive.
The hearing commissioner, upon stipulations and the evidence, made findings of fact that in 1950 the deceased was committed to prison for armed robbery to serve a sentence of 17 to 25 years. Prior to his imprisonment he earned from $40 to $100 per week. As a prisoner he earned a substantial income from the manufacture of leather goods and by taking still and moving photographs of prison activities. On the night of March 21-22, 1958, the deceased prisoner was ordered to accompany Edward Wright, an employee of the defendant, to Raleigh for the purpose of taking a sick prisoner to the prison hospital. The hearing commissioner found:
"4. During the night of 21-22 March 1958 the Lincolnton Prison Camp was under the command of Hugh A. Logan, Jr., Assistant Superintendent of the prison camp. Shortly before midnight on such night Mr. Logan had the deceased awakened and ordered or directed that the deceased go with Edward Wright, an employee of the prison camp, to Raleigh in order to take a sick prisoner to the prison hospital. The deceased was ordered to make the trip as an assistant to Wright and to assist Wright on the trip in any way possible. The trip to Raleigh commenced at approximately midnight, with Wright driving a prison pickup truck with cage on the back. The deceased rode with Wright in the cab of the truck and the sick prisoner was placed on a mattress in the cage at the back of the truck.
"5. While driving the prison truck towards Raleigh and in an easterly direction on U.S. Highway 64, Wright failed to slow down before approaching the proximity of a stop sign on U.S. Highway 64 at the intersection of U.S. Highway 64-A, despite two or three signs warning of the intersection. Wright applied the brakes of the truck suddenly while driving 55 miles per hour, lost control of the truck, it went off the road and turned end over end near the junction of the intersecting highways.
"6. The above named employee of the defendant, Wright, did other than a reasonably prudent person would have done under the same or similar conditions. This constituted negligence upon his part and such negligence was the proximate cause of the accident giving rise hereto.
"7. As a result of the accident giving rise hereto deceased sustained severe injuries. The injuries resulted in the death of deceased at 5:40 p. m., on 22 March 1958."
The hearing commissioner sustained the demurrer. The full commission and the superior court upon review sustained the ruling on the demurrer. From the order accordingly entered in the Superior Court of Chatham County, the plaintiff appealed.
The General Assembly, by Article 31 of Chapter 143, General Statutes, has constituted the North Carolina Industrial Commission a court with jurisdiction to hear and pass on tort claims against the State Board of Education, State Highway Commission, and all other departments, institutions and agencies of the State. The State is made liable up to $10,000 for the negligent act of its officers, employees and servants if under the same conditions a private person would be liable. Turner v. Board of Education, 250 N.C. 456, 109 S.E.2d 211; Lawson v. State Highway Public Works Commission, 248 N.C. 276, 103 S.E.2d 366; Alliance Co. v. State Hospital, 241 N.C. 329, 85 S.E.2d 386; Lyon Sons, Inc. v. N.C. State Board of Education, 238 N.C. 24, 76 S.E.2d 553.
The Industrial Commission's findings of fact established that the plaintiff's intestate, a prisoner, while performing an assigned task, met his death as result of the negligent act of Edward Wright, an employee of the State, while acting within the scope of his employment. Thus the findings established the plaintiff's right to assert this claim on behalf of his intestate unless some other provision of law withdraws the right.
The plaintiff contends that nowhere in the law is the right to maintain the tort action withdrawn. On the other hand, the defendant contends that G.S. 97-10 and G.S. 97-13, subsection (c) as amended, provide a remedy under the Workmen's Compensation Act which is exclusive. G.S. 97-10 grants rights and remedies where the employer and employee have accepted the provisions of the Workmen's Compensation Act. G.S. 97-13 exempts from the provisions of the Workmen's Compensation Act the following: (a) railroad employees; (b) casual employees, domestic servants, farm laborers, Federal government employees, employers of less than five employees; (c) "Prisoners. — This article (Workmen's Compensation) shall not apply to prisoners being worked by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the State Prison Department shall suffer accidental injury arising out of and in the course of the employment to which he has been assigned, if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this article, then such discharged prisoner may (emphasis added) have the benefit of this article by applying to the Industrial Commission as any other employee; provided, such application is made within 12 months from the date of discharge; and provided, further, . . . (here follow provisions not here material) and no award other than burial expenses shall be made for any prisoner whose accident results in death. . . ." The foregoing provisions of G.S. 97-10 and G.S. 97-13 were in effect when the Tort Claims Act (G.S. 143-291) was passed in 1951, repealing all inconsistent provisions of law.
In 1957, Public Laws, Ch. 809, amended G.S. 97-13, subsection (c) by the following: "The provisions of G.S. 97-10 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said section applies to employees and employers." As stated by Bobbitt, J., in Lawson v. Highway Commission, 248 N.C. 276, 103 S.E.2d 288, "G.S. 97-13 (c) conferred limited rights upon prisoners in a special classification, to wit, those assigned to work under the supervision of the State Highway Public Works Commission, in the event they suffered `accidental injury arising out of and in the course of employment to which . . . assigned.' No provision was made for other prisoners." . . .
"With knowledge, actual or presumed, of the limited rights theretofore conferred upon prisoners in this special classification, the General Assembly of 1951 enacted the Tort Claims Act. . . . It did not exempt any prisoners from its provisions. In Gould v. Highway Commission, 245 N.C. 350, 95 S.E.2d 910, this Court held that a prisoner not in said special classification was entitled to recovery under the Tort Claims Act." The case then raised the question whether the 1957 amendment to G.S. 97-13 (c) denied to prisoners on assigned tasks rights conferred by the Tort Claims Act.
As stated by Justice Bobbitt in the Lawson case, G.S. 97-13 (c) is not free from ambiguity. The purpose and meaning of the 1957 amendment were not directly involved in that case. Here it is involved. Any inconsistencies between subsection (c) before the amendment and the Tort Claims Act were repealed by the latter. The question now is whether the 1957 amendment withdraws the plaintiff's right to assert a tort claim.
If the Legislature intended to withdraw altogether a prisoner's right to pursue a tort claim, the logical procedure would be by amendment to the section of the Tort Claims Act which gave the right. No valid reason is suggested why the withdrawal, if such were intended, should be by an amendment tucked away in a jumbled and confusing subsection which is an exception followed by two provisos to the section of the Workmen's Compensation Act, entitled, "Exceptions from provisions of article." Interpretation of 97-13, subsection (c), originally and after the amendment, presents a problem in legal quadratics. The amendment makes no reference to the Tort Claims Act. "Repeals by implication are not favored by the law and will not be indulged if there is any other reasonable construction." Cab Co. v. Charlotte, 234 N.C. 572, 68 S.E.2d 433. "The presumption is against the intention to repeal where express terms are not used, and will not be indulged if by any other reasonable construction the statutes may be reconciled and declared to be operative without repugnance. `To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed.'" Spaugh v. Charlotte, 239 N.C. 149, 79 S.E.2d 748; McLean v. Board of Elections, 222 N.C. 6, 21 S.E.2d 842; Kelly v. Hunsucker, 211 N.C. 153, 189 S.E. 664; Story v. Commissioners, 184 N.C. 336, 114 S.E. 493.
Actually, by its own terms, the 1957 amendment applies only to prisoners and discharged prisoners entitled to compensation under this subsection. The limitation in the amendment that it shall apply to prisoners and discharged prisoners entitled to compensation does not require — even if it permits — the interpretation placed upon it by the Prison Department that the payment of burial expenses constitutes the payment of compensation. The term compensation as used in the Workmen's Compensation Act is defined in G.S. 97-2 (11): "When used in this article unless the context otherwise requires . . . means the money allowance payable to an employee or to his dependents as provided for in this article, and includes funeral benefits provided herein." As defined by this Court in Branham v. Panel Co., 223 N.C. 233, 25 S.E.2d 865: "Compensation in the connection in which it is used in this Act means money relief afforded according to a scale established and for the person designated in the Act." In Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109, the Court said: "Compensation is defined in our statutes as the money allowance payable to an employee or his dependents, including funeral expenses."
To be sure, the definition includes burial expenses, but it takes the whole to constitute compensation and not one of its parts. A vest is a part of a suit of clothes, but a vest cannot be called a suit. Surely compensation for wrongful death involves more than the burial of the body.
The rule against repeal by implication requires us to hold the plaintiff's right to have the tort claim heard and passed on has not been withdrawn. If the Legislature intended to exclude prisoners, all it had to do was pass a simple amendment to the Tort Claims Act saying, "prisoners assigned by the courts to work under the State Prison Department are excluded." Intention to withdraw a prisoner's right to assert a tort claim cannot be presumed as a result of the amendment to the Workmen's Compensation Act in its present form and setting.
The claimant administrator is entitled to have the North Carolina Industrial Commission hear and pass on his tort claim against the Prison Department. The judgment of the Superior Court sustaining the demurrer is
Reversed.