Hunt v. State, 201 N.C. 37 (1931)

May 27, 1931 · Supreme Court of North Carolina

201 N.C. 37

DAVID ELDER HUNT, Deceased, v. THE STATE OF NORTH CAROLINA, ADJUTANT GENERAL’S DEPARTMENT, SELF-INSURER.

(Filed 27 May, 1931.)

Master and Servant F d — Where deceased employee leaves no dependents only his personal representative may litigate, claim under the act.

It is required by C. S., 446, that an action be prosecuted in the name of the real party in interest, and where a statute names a person to receive funds and authorizes him to sue therefor, only the person named may litigate the matter, and section 40 of the Workmen’s Compensation Act provides that in case the deceased employee leaves no dependents, the employer shall pay the amount-recoverable thereunder to the personal representative of the deceased, and held: where a claim under the act is litigated in the name of the deceased the proceeding is a nullity and will be dismissed on appeal to the Supreme Court, nor may the personal representative come in and make himself á party under the provisions of C. S., 1414.

Appeal by defendant from Devin, J., at April Term, 1931, of Granville. '

Proceeding under Workmen’s Compensation Act by “David Elder Hunt, deceased,” to. determine liability of tbe State, as self-insurer, to decedent’s dependents or bis estate.

David Elder Hunt, a duly enlisted member of tbe North Carolina National Guard, was killed in an automobile accident about 1:30 a.m. 13 July, 1930, while driving from bis home in Oxford, N. C., to More-bead City, N. 0., to report for duty at Camp Glenn in connection with tbe annual encampment of tbe North Carolina National Guard.

Tbe deceased was nineteen years of age at tbe time of bis death. He left no one him surviving wholly or partially dependent upon bis earnings for support. No personal representative of tbe deceased has been appointed, and it is not clear from tbe record just bow tbe matter was presented to tbe North Carolina Industrial Commission.

At any rate, tbe Industrial Commission “denied'compensation in this case” on tbe ground that tbe injury by accident, resulting in death, did not arise out of and in tbe course of tbe employment of tbe deceased as a National Guardsman. This ruling was reversed on appeal to tbe Superior Court, tbe appeal being by “tbe claimant,” and tbe judgment of tbe Superior Court recites “that tbe personal representative of tbe said David Elder Hunt, deceased, is entitled to compensation under tbe provisions of tbe Workmen’s Compensation Act.”

From this judgment tbe defendant appeals, assigning error.

Attorney-General Brummitt and Assistant Attorneys-General Nash and Siler for appellant.

Parham & Lassiter and Royster & Royster for appellee.

Stacy, C. J.

Tbe liability of tbe State, as self-insurer, under tbe Workmen’s Compensation Act, for injuries arising out of and in tbe course of tbe employment of a duly 'enlisted National Guardsman was considered in Baker v. State, 200 N. C., 232, 156 S. E., 917.

But it is provided by section 40 of tbe Workmen’s Compensation Act that in case tbe deceased employee leaves no dependents, the employer shall pay tbe amount allowed thereunder “to tbe personal representative of tbe deceased.” When a statute names a person to receive funds, and authorizes him to sue therefor, no one but tbe person so designated has tbe right to litigate tbe matter. 20 R. C. L., 664.

It is further provided by O. S., 446 that “Every action must be prosecuted in the name of the real party in interest,” etc. Casualty Co. v. Green, 200 N. C., 535, 157 S. E., 797; Chapman v. McLawhorn, 150 N. C., 166, 63 S. E., 721. Tbe proceeding, therefore, brought in tbe name of tbe deceased, and no one else, would seem to be nullius juris. S. v. Beasley 196 N. C., 797, 147 S. E., 301.

Nor is it permissible under C. S., 1414 for the personal representative of the deceased, hereafter to be appointed, to come in now and make himself a party to the proceeding- in the Supreme Court. Having acquired no jurisdiction of the matter as presently presented, there is nothing before the Court.

Proceedings dismissed.