McPherson v. Henry Motor Sales Corp.

*307 CoNNOR, J. Tbis cause is founded upon a claim filed by tbe plaintiff as administrator of Willie Gant, deceased, on 17 March, 1930, witb tbe North Carolina Industrial Commission, against tbe defendant, Henry Motor Sales Corporation, as employer of Willie Gant at tbe date of bis death, and against tbe defendant, Hartford Accident & Indemnity Company, as tbe insurance carrier for its codefendant, for compensation under tbe provisions of tbe North Carolina Workmen’s Compensation Act. Chapter 120, Public Laws of N. C., 1929. At tbe request of tbe plaintiff, and after notice as required by tbe statute to each of tbe defendants, tbe cause was beard at Greensboro, N. C., by Commissioner Dorsett, who found tbe facts and made bis award thereon, on 20 April, 1930. Tbe award, together witb a statement of tbe findings of fact, rulings of law, and other matters pertinent to tbe questions at issue, was filed witb tbe record of tbe proceedings, and a copy of tbe award duly sent to each of tbe parties to tbe cause as required by tbe statute, section 58. No application was made to tbe Commission by tbe defendant, Henry Motor Sales Corporation, for a review of tbe award made by Commissioner Dorsett, as authorized by tbe statute, section 59. Tbe award of Commissioner Dorsett, which was duly filed witb tbe full Commission, was therefore conclusive and binding on tbe defendant, Henry Motor Sales Corporation, section 60, chapter 120, Public Laws 1929. On 23 April, 1930, tbe defendant, Hartford Accident & Indemnity Company, applied to tbe North Carolina Industrial Commission for a review by the full Commission of the findings of fact and conclusions of law upon which the award made by Commissioner Dorsett was founded. Pursuant to this application, the cause was heard by the full Commission, which approved and confirmed the findings of fact and conclusions of law made by Commissioner Dorsett, and thereupon the Commission made its award on 23 June, 1930. The defendant, Henry Motor Sales Corporation, did not appear at the hearing before the full Commission, nor did it except to or appeal from its award to the Superior Court of Guilford County. The defendant, Henry Motor Sales Corporation, bad no standing in the Superior Court of Guilford County, as an appellant or otherwise, on the hearing of the appeal of the defendant, Hartford Accident & Indemnity Company, to said court. This appeal was taken only by the defendant, Hartford Accident & Indemnity Company. This defendant, upon the facts found by the North Carolina Industrial Commission, under the provisions of section 71 of chapter 120, Public Laws 1929, was directly liable to plaintiff, if plaintiff is the person entitled to compensation under the provisions of the statute. It had the right, *308 under the statute, to appeal from the award made against it by the Commission to the Superior Court. Its appeal, however, conferred no right on the defendant, Henry Motor Sales Corporation, to be heard in the Superior Court of Guilford County or in this Court, for the reason that said defendant did not except to or appeal from the award of the North Carolina Industrial Commission in this cause. In Bynum v. Turner et al., 171 N. C., 86, 87 S. E., 975, it was held that where a personal judgment was rendered against a defendant, who did not appeal, the judgment could not be reviewed on appeal by another defendant, but is valid and conclusive as to the defendant, who did not appeal. This principle is applicable in the instant case, and in accordance therewith, the appeal of the defendant, Henry Motor Sales Corporation, to this Court from the judgment of the Superior Court of Guilford County is dismissed. See, also, Hannah v. Hyatt, 170 N. C., 634, 87 S. E., 517; Westfelt v. Adams, 159 N. C., 409, p. 425, 74 S. E., 1041. In its application to the full Commission for a review of the award made in this cause by Commissioner Dorsett, the defendant, Hartford Accident and Indemnity Company, set out specifically the grounds upon which it asked for such review. Its contentions based upon these grounds were not sustained by the full Commission. It did not present to the full Commission its contention made for the first time in the Superior Court on its appeal from the award of the Commission, that sections 38 and 40 of the North Carolina Compensation Act, as construed and applied in this case, are in contravention of the prohibitions of the 14th Amendment to the Constitution of the United States. This contention was first made in its notice of appeal from the award, dated 1 July, 1930. For this reason, upon well settled principles governing the exercise of its jurisdiction by an appellate court, such as the Superior Court of Guilford County was in this case, the said defendant was not entitled to be heard on this contention, and it was error for the judge of the Superior Court to hear and decide the question involved in the contention. His jurisdiction, as an appellate court, was restricted to the consideration of questions of law which had been duly presented and decided by the North Carolina Industrial Commission. As the said Commission did not hear or decide the only question of law presented by defendant, as appellant, to the judge of the Superior Court, so much of his judgment as holds that sections 38 and 40 of the North Carolina Workmen’s Compensation Act, as construed and applied in this case, is not in violation of the prohibition of the 14th Amendment to the Constitution of the United States, should be stricken out. The question as to whether under the provisions of sections 38 and 40 of the North Carolina Workmen’s Compensation Act, as properly *309 construed, the administrator of a deceased employee, wbo left no persons partially or wholly dependent on him for support, is entitled to compensation as provided by said act was presented to this Court in Beeves v. Parker-Graham-Sexton, Inc., 199 N. C., 236, 154 S. E., 66. It was there held that where the death of an employee is compensable under the provisions of the act, and such deceased employee has no dependents, the compensation is payable to his personal representative for the benefit of his next of kin. Whether in any event, an insurance carrier, who has voluntarily assumed liability to an employee for compensation from his employer, under the provisions of the North Carolina Workmen’s Compensation Act, in consideration of a premium paid by the employer, can challenge the validity of any provisions of the act, on the ground that such provision is in violation of some prohibition of the Federal or State Constitution, is at least debatable. However, the principle is well established that courts never anticipate a question of constitutional law in advance of the necessity of deciding it. Goldsboro v. Supply Co., 200 N. C., 405, 157 S. E., 58, and cases cited. The constitutionality of sections 38 and 40 of the North Carolina Workmen’s Compensation Act, as construed and applied in this cause, is not presented on this record. We do not, therefore, decide the question presented by the appellant, Hartford Accident & Indemnity Company, by its assignment of error. In accordance with this opinion, the judgment is modified by striking therefrom so much thereof as adjudges that sections 38 and 40 of the North Carolina Workmen’s Compensation Act is valid and legal; as thus modified, the judgment is affirmed. Modified and Affirmed.