Filed 17 November 1971
Master and Servant 79 — workmen's compensation — death benefits — next of kin — brothers and sisters The definition of "brother" and "sister" contained in G.S. 97-2 (12) applies to those words as used in the definition of "next of kin" in G.S. 97-40 prior to its amendment effective 1 July 1971; consequently, two brothers and a sister of a deceased employee who were all over the age of 18 and married at the time of the employee's death were not entitled to "next of kin" compensation under the Workmen's Compensation Act.
APPEAL by claimants from Opinion and Award of the North Carolina Industrial Commission filed 1 April 1970.
Mason H. Anderson for claimant-appellants.
C.V. Jones and S. F. Gantt by S. F. Gantt for employer-appellee.
Chief Judge MALLARD dissenting.
There was no dispute as to the facts, and the Commission adopted the stipulations of the parties which are summarized as follows:
At the time of the death of O'Neal Daniels, an employer-employee relationship existed between him and the defendant. The defendant was a self-insurer. The death resulted from an injury by accident arising out of and in the course of the employment on 18 September 1969. Defendant paid $500.00 for funeral expenses to the administratrix of the estate. Deceased left surviving no wife, children, parents or dependent of any kind. Deceased was survived by two brothers and one sister, all of whom were over the age of eighteen and married at the time of the death of deceased.
The Commission held that under the decision of Jones v. Sutton, 8 N.C. App. 302, 174 S.E.2d 128 (1970), G.S. 97-40, should be construed in pari materia with G.S. 97-2 (12), and when so construed the claimants were not next of kin and therefore no compensation was due or payable on account of the death of the deceased employee, O'Neal Daniels, except the burial expenses not exceeding $500.00 which had already been paid.
From this opinion and award the claimants appealed.
As stated in the record, "The question presented by the appeal is as follows: Does the definition of brothers and sisters set out in N.C. 97-2 (12) apply to the definition of `next of kin' set out in N.C. 97-40?"
A similar question was presented to this Court and decided in the case of Jones v. Sutton, 8 N.C. App. 302, 174 S.E.2d 128 (1970), and this Court, speaking through Judge Britt, held that G.S. 97-2 (12) defined a person over eighteen at the time of father's death as not a child and therefore is not "next of kin" as defined in G.S. 97-40. We think that case is controlling in the present matter.
The appellants, in a very persuasive brief, "urge this Court to reconsider its decision in the JONES case."
The Jones case was filed 27 May 1970. The 1971 amendment did not become effective until 1 July 1971 which was after the death in this case. We think the Jones case properly construed the Workmen's Compensation Act and correctly held that G.S. 97-40 should be construed in pari materia with G.S. 97-2 (12). We feel strengthened in this view by the fact that the Supreme Court of North Carolina in Horney v. Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966), stated:
". . . It is noted that G.S. 97-40 was amended in 1965 (Session Laws of 1965, Chapter 419) so that, under certain circumstances, the father, mother or sister of a deceased employee, without reference to dependency, would be entitled to receive death benefits under the Workmen's Compensation Act. . . ." (Emphasis added.)
We are of the opinion that this is not one of the "certain circumstances" when brothers and sisters are entitled to receive death benefits. We adhere to our previous position in the Jones case and hold that G.S. 97-40 must be construed with G.S. 97-2 (12).
Judge HEDRICK concurs.
Chief Judge MALLARD dissents and files a dissenting opinion.