#### JAMES OSCAR THOMPSON v. VIRGINIA AND CAROLINA SOUTHERN RAILROAD COMPANY, a Corporation.

(Filed *13*December, 1939.)

1. Abatement and Revival § 17—

Where it does not appear upon tbe face of tbe complaint that a prior action is pending between the parties, the objection may be raised by answer, C. S., 517, treated as a plea in abatement.

2. Abatement and Revival § 7: Master and Servant § 44—

Where it appears that an injured employee’s action against the third person tort-feasor is instituted prior to the institution of an action by the compensation insurance carrier against the tort-feasor, chapter 449, Public Laws 1935, Michie’s Code, sec. 8081 (r), defendant’s plea in abatement in the employee’s action on the ground of the pendency of a prior action cannot be sustained.

3. Pleadings § 14—

When defendant demurs *ore tenus*on the ground that the court is without jurisdiction, and this defect does not appear upon the face of the complaint, the court may consider the facts alleged in the answer and the evidence heard by it upon defendant’s motion to dismiss.

4. Master and Servant § 44 — Employee may maintain action in his own name against third person tort-feasor when no award of compensation has been made to employee.

This action was instituted by an employee against a third person tort-feasor. It appeared that an award for medical expenses had been made *555on petition of the doctor, bnt no claim for compensation had been filed by the employee against his employer and that no compensation for the injury had been awarded him, and that the time for filing claim therefor had expired, so that no future claim by subrogation could accrue in favor of the employer or insurer against the third person tort-feasor. It further appeared that the insurance carrier subsequently instituted action against the third person tort-feasor to recover the amount paid by the insurer under the award of medical expenses. *Held:*The third person tort-feasor is liable in damages for any negligent injury inflicted by it and is not interested in the form of the action except to the extent of seeing that it may not be twice vexed nor more than one recovery allowed, nor is it concerned with the method of distribution of any recovery, and therefore it is not entitled to dismissal of the employee’s previously instituted action. Whether, and if so, by what method, the insurance carrier can be reimbursed out of the recovery for the amount paid by it for medical expenses *held*not presently presented, but the trial court has power, by proper order, to protect the interests of all parties before the court.

Appeal by plaintiff from *Burney, J.,*at May Term, 1939, of BobesoN.

Beversed.

*McKinnon, Nance & Seawell for plaintiff.*

*McLean & Stacy for defendant.*

Devin, J.

Plaintiff instituted bis action against defendant Railroad Company for damages for a personal injury alleged to have been caused bim by tbe negligence of tbe defendant. He alleged tbat while be was in a boxcar on defendant’s track, at work for bis employer, tbe B. J. Beynolds Tobacco Company, tbe boxcar was violently struck by one of defendant’s locomotives, negligently operated, and be suffered a physical injury to bis bead and body, for which be asks damages in tbe sum of $3,000. Tbe injury occurred 23 August, 1938, and summons was issued 19 October, 1938.

Defendant answered, denying tbe allegations of negligence, pleading contributory negligence, and further alleged tbat plaintiff was an employee of B. J. Beynolds Tobacco Company, and tbat both be and bis employer bad accepted tbe provisions of tbe North Carolina "Workmen’s Compensation Act, and tbat plaintiff’s claim should have been filed with tbe Industrial Commission, which bad exclusive jurisdiction of tbe matters complained of. Tbe answer was verified 9 November, 1938. In March, 1939, defendant filed an amended answer alleging tbat plaintiff’s claim bad been beard and adjudicated by tbe Industrial Commission, and tbat an award thereon bad been paid by tbe employer’s insurance carrier, and tbat tbe insurance carrier, tbe Maryland Casualty Company, bad instituted suit against defendant on behalf of itself and tbe plaintiff to recover damages for tbe injury under tbe provisions of cb. 449, Public Laws 1933 (Micbie’s N. C. Code, sec. 8081 [r]).

*556At tbe bearing defendant demurred to tbe complaint on tbe ground *that the*injury complained of was due to an accident arising out of and in tbe course of plaintiff’s employment by R. J". Reynolds Tobacco Company, and that following a bearing bad before tbe Industrial Commission upon tbe report of tbe plaintiff’s employer, and an award made thereon, a suit bad been instituted against tbe defendant by tbe Maryland Casualty Company, employer’s insurance carrier, upon tbe same cause of action, which was now pending, and defendant moved to dismiss tbe action.

In support of this demurrer and motion tbe court beard evidence offered by defendant and made certain findings, and adjudged that' tbe motion of defendant be allowed and dismissed tbe action.

Tbe defendant’s demurrer, interposed on the ground that there was another action pending between tbe same parties for tbe same cause, related to matters which do not appear on tbe face of tbe complaint. But this objection may be raised by answer (C. S., 511), treated as a plea in abatement. *Lineberger v. Gastonia,*196 N. C., 445, 146 S. E., 79. However, tbe record discloses that plaintiff’s action was begun 19 October, 1938, and that tbe action of tbe Maryland Casualty Company against defendant was not instituted until 15 February, 1939. Hence, tbe defendant’s motion based upon this ground alone could not avail. *Pettigrew v. McCoin,*165 N. C., 472, 81 S. E., 701; *Allen v. Salley,*179 N. C., 147, 101 S. E., 545; *Bank v. Broadhurst,*197 N. C., 365, 148 S. E., 452; *Bowling v. Bank,*209 N. C., 463, 184 S. E., 13.

Treating defendant’s motion as a demurrer *ore tenus*to tbe jurisdiction of tbe Superior Court, it seems that tbe defect complained of does not appear on tbe face of tbe complaint. Tbe facts found by tbe court below were not alleged or admitted by tbe plaintiff. However, it may be proper to consider tbe matters set up in tbe answer, in tbe light of tbe evidence produced before tbe trial court, as bearing on defendant’s plea that tbe Superior Court did not have jurisdiction of plaintiff’s action.

Tbe North Carolina "Workmen’s Compensation Act, as amended by chapter 449, Public Laws 1933, prescribes that *the*rights and remedies grapted by tbe act to an employee to secure compensation for an injury by ¿accident shall exclude all other lights and remedies as against bis employer. Tbe statute contains tbe further provision: “Provided, however, that in any case where such employee, bis personal representative, or other person may have a right to recover damages for such injury, loss of service, or death from any person other than tbe employer, compensation shall be paid in accordance with tbe provisions of this act.” Tbe provision making tbe remedy against tbe employer under tbe act exclusive, does not appear in tbe clause relating to suits against third persons.

*557Tbe jurisdictional facts, as disclosed by the testimony of the secretary of the Industrial Commission, were these: Notice of the accident was given the Commission by plaintiff’s employer, but the plaintiff Thompson did not at any time make any claim before the Commission for compensation, or for a hearing, or for an award, nor was he ever present or represented at any hearing. Neither the employer nor the employee requested a hearing on compensation, nor did either employer or employee ever agree to an award. The award, dated 13 December, 1938, dealt only with medical expenses, and was made on petition of the doctor.

The Workmen’s Compensation Act defines “compensation” as the “money allowance payable to an employee or his dependents as provided for in this act and includes funeral benefits provided herein.”

It was alleged in the answer that the.Maryland Casualty Company, the insurance carrier of the employer, paid the award for medical expenses (amounting to $114), and it appears that the Casualty Company has instituted action in its own name against the defendant Railroad Company to recover for the injury to plaintiff. The statute provides that where an employee is insured and the insurance carrier shall have paid any compensation for which the employer is liable the, insurance carrier shall be subrogated to the rights of the employer and may enforce any such rights in the name of the injured employee.

It is apparent that no compensation for the injury has been claimed by the plaintiff, or awarded him by the Industrial Commission, and the mere fact that the insurance carrier, having paid the medical expenses allowed by the Commission on the doctor’s petition, has instituted suit in its own name against the defendant, cannot be held to entitle the defendant Railroad Company to a dismissal of plaintiff’s previously instituted action against it for damages for an injury alleged to have been caused by its negligence.

In *Brown v. R. R.,*204 N. C., 668, 169 S. E., 419, *Brogden, J*speaking for the Court, makes this observation: “Manifestly the statute was designed primarily to secure prompt and reasonable compensation for an employee, and at the same time permit an employer, or his insurance carrier, who has made a settlement with the employee, to recover the amount so paid from a third party causing the injury to such employee. C. S., 8081 (r). Moreover, the statute was not designed as a city of refuge for a negligent third party.”

Nor may the rule in *Hardison v. Hampton,*203 N. C., 187, 165 S. E., 355, be invoked in support of the judgment below. It was said in that case: “When the employer has filed with the Commission a report of the accident and claim of the injured employee, the Commission has jurisdiction of the matter and the claim is filed with the Commission within the meaning of section 24.” But here it affirmatively appears from *558defendant’s evidence that no claim was made, or attempted to be made, by or on bebalf of plaintiff, or considered by tbe Industrial Commission, for compensation for tbis injury.

Tbe defendant is not primarily concerned witb tbe form in wbicb tbis-action against it, to recover damages for tbe injury to plaintiff, is prosecuted, except to see that it may not be twice vexed nor more tban one recovery allowed. Tbe period of twelve months witbin wbicb plaintiff could file claim for compensation under tbe act bas elapsed, and no other right of action could now accrue for tbe benefit of tbe employer, or its insurance carrier, or tbe plaintiff. If it be established that tbe defendant negligently caused plaintiff’s injury, it must respond in damages, and is not concerned witb tbe method of distribution of tbe recovery. In tbe event of recovery by plaintiff in tbis action, whether tbe insurance-carrier can be reimbursed for tbe amount paid for medical expenses, or, if so, in what maimer, is not now before us. Tbe Court bas power, by proper order, to protect tbe interests of all parties before tbe Court.

We conclude that tbe court below was in error in sustaining defendant’s motion, and that tbe judgment dismissing tbe action must be

Reversed.