#### HETTIE MATHIS, Administratrix of WATSON MATHIS, Deceased, v. CAMP MANUFACTURING COMPANY.

(Filed 29 March, 1933.)

1. Death B a—

An action for wrongful death must be brought within one year of the accrual of the cause of action, and plaintiff must prove that the action was brought within the prescribed time, and this provision is not a statute of limitation but a condition affecting the cause of action. C. S., 160.

2. Same — Action instituted in Superior Court for wrongful death will not be considered continuation of proceedings under Compensation Act.

Where a proceeding for compensation is instituted before the Industrial Commission by the dependent widow of a deceased employee against the employer and its insurance carrier, and the proceeding is dismissed, an action thereafter begun in the Superior Court by the widow as ad-ministratrix against the employer to recover for the employee’s wrongful *435death will not be considered a continuation of the proceedings before the Industrial Commission so as to relate back to the time of the institution of such proceedings, and the action instituted in the Superior Court is barred if not brought within one year from the employee’s death. C. S., 160, there being a distinction between dismissal of proceedings under the Compensation Act and a nonsuit entered in an action instituted in the Superior Court entitling plaintiff to institute a new action within one year, C. S., 415.

Appeal by plaintiff from *Devin, J.,*at October Term, 1932, of PeNdee.

Affirmed.

Watson Matbis, husband of Hettie Matbis, died intestate on 2 October, 1930, while in tbe employ of tbe defendant as skidder foreman. Soon after bis death Hettie Matbis brought a proceeding before tbe North Carolina Industrial Commission entitled “Hettie Matbis, dependent wife of Watson Matbis, deceased, plaintiff, *v.*Camp Manufacturing Company, employer, and Consolidated Underwriters, carrier.” Prom an order of tbe Industrial Commission an appeal was taken to tbe Superior Court and at tbe December Term, 1931, of Gates County Judge Erizzelle made an order that tbe proceeding be remanded to tbe Industrial Commission for tbe purpose of being dismissed, on tbe ground that tbe deceased at tbe time of bis death was a railroad employee and was not bound by tbe Workmen’s Compensation Act. From this order there was no appeal. Tbe proceeding was dismissed.

On 15 June, 1931, Hettie Matbis qualified as administratrix of tbe estate of her deceased husband and on 20 August, 1932, brought this action in tbe Superior Court of Pender County to recover damages for tbe wrongful death of her husband. Tbe defendant filed a plea in abatement on tbe ground that tbe action cannot be maintained. Judge Devin sustained tbe plea and dismissed tbe action. Tbe plaintiff excepted and appealed.

*George B. Ward for plaintiff.*

*J. J. Best and Herbert McClammy for defendant.*

Adams, J.

Any person who causes tbe wrongful death of another is liable to an action for damages to be brought by tbe personal representative of tbe deceased within one year after tbe death. C. S., 160; *Davis v. R. R.,*200 N. C., 345. Tbe provisions as to time is not a statute of limitation but a condition affecting tbe cause of action. *Gulledge v. R. R.,*148 N. C., 567. It follows, not only that tbe plaintiff must bring bis action within one year after tbe death; be must at tbe trial make proof of tbe fact. *Hanie v. Penland,*193 N. C., 800; *Hatch v. R. R.,*183 N. C., 617; *Bennett v. R. R.,*159 N. C., 345. Tbe plaintiff complies with this provision of tbe statute if be begins bis action within tbe *436prescribed time, takes a nonsuit, and institutes a new action within one year after nonsuit. C. S., 415; *Trull v. R. R., 151*N. C., 545; *Brooks v. Lumber Co.,*194 N. C., 141. The second action would thus relate back to the beginning of the first. *Quelch v. Futch,*174 N. C., 395. Compare *Loan Co. v. Warren, ante, 50.*

The plaintiffs intestate died 2 October, 1930; the proceeding first instituted was dismissed in December, 1931; the plaintiff brought this suit 20 August, 1932. The action is therefore tolled unless it can be construed as a continuation after nonsuit of the proceedings begun before the Industrial Commission. This is the position on which the plaintiff relies, but we are of opinion that it cannot be maintained.

Only for the purpose of the argument, we may accede to the proposition that the judgment dismissing the proceedings before the Industrial Commission did not necessarily prevent the plaintiff from beginning anew. *Pescud v. Hawkins,*71 N. C., 299. Another fact, however, must be kept in mind. Section 415 applies only to actions instituted in the regular course of civil procedure and not to collateral or incidental proceedings. “This appears from the legal meaning of the terms employed and the obvious'implication arising upon them, taken together, to express the legislative intent. The leading important words are 'an action/ 'an action commenced within the time prescribed therefor/ 'a judgment therein/ 'reversed on appeal/ or 'arrested/ 'the cause of action survived/ 'a new action.’ ” *McIlhenny v. Trust Co.,*108 N. C., 311. The two suits must be for substantially the same cause and the parties must be identical. *Quelch v. Futch, supra.*

In the pending ease these conditions are not met. The tribunals are diverse in their origin, their jurisdiction, their purpose. The Industrial Commission is the creature of statute; the Superior Court is grounded in the Constitution. The Commission administers compensation without regard to fault as the basis of liability. *Conrad v. Foundry Co.,*198 N. C., 723. Under section 160 the Superior Court awards damages only when the death of a person is caused by the wrongful act, neglect, or default of another. The distinction between the administrative functions of the one and the .judicial functions of the other is pointed out in *Brown v. R. R.,*202 N. C., 256.

The parties and causes are distinct. The proceedings before the Industrial Commission were brought by Hettie Mathis, as dependent wife, against the Camp Manufacturing Company and Consolidated Underwriters, carrier, for an award of compensation under the terms of the Workmen’s Compensation Act. The present action is prosecuted to recover damages, which would be disposed of under the statute providing for the distribution of personal property in case of intestacy. The judgment is

Affirmed.