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8 N.C. App. 302

Jones v. Sutton

Court of Appeals of North Carolina · decided 1970-05-27

Cited by 4 later decisions — most recently May 1972

4 state decisions

Key passage — most relied on by later courts

“Child, Grandchild, Brother, Sister. — The term “child” shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him. “Grandchild” means a child as above defined of a child as above defined. “Brother” and “sister” include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. “Child,” “grandchild,” “brother” and “sister” include only persons who at the timé of the death of the deceased employee are under eighteen years of age.”

quoted by 1 later decision, including Stevenson v. City of Durham

Relies on Hewett Ex Rel. Wilson v. Garrett

Good law ✅— No negative treatment on recordhow we know

Decided 1970-05-27

View the full empirical analysis of this case →

Beitt, J.

¶1Defendants contend that the award of the Industrial Commission is in error on the ground that Nancy Carol is entitled to compensation only as a “partial dependent” under G.S. 97-38(2) and not as “next of kin” under G.S. 97-38(3). G.S. 97-38(3) provides in part:

“If there is no person wholly dependent, and the person or all persons partially dependent is or are within the class of persons defined as ‘next of kin’ in G.S. 97-40, he or they may take, share and share alike, the commuted value of the amount provided for whole dependents in (1) above instead of the proportional amount provided for partial dependents in (2) above.”

¶2The pertinent clause of G.S. 97-40 provides: “For the purpose of this section and G.S. 97-38, ‘next of kin’ shall include only child, father, mother, brother or sister of the deceased employee.”

¶3Nancy Carol would thus be entitled to compensation under G.S. 97-38(3) as a partial dependent who is also “next of kin” by virtue of being a “child,” but for yet another definition found in G.S. 97-2(12):

“ ‘Child,’ ‘grandchild,’ ‘brother,’ and ‘sister’ include only persons who at the time of the death of the deceased employee are under eighteen years of age.”

¶4G.S. 97-2 generally sets out definitions of various terms used in the Workmen’s Compensation Act, indicating that the definitions are applicable when the terms are “used in this article, unless the context otherwise requires.” We fail to see that the context requires any construction contrary to defining “child” as used in G.S. 97-40 in accordance with G.S. 97-2(12).

¶5In Hewett v. Garrett, 274 N.C. 356, 163 S.E. 2d 372 (1968), at page 360, the court said: “G.S. 97-2(12) clearly sets out how a child, legitimate or acknowledged illegitimate, may lose its right as *304a child to share in compensation benefits: 1. By reaching the age of 18 years, whether married or single. 2. By marriage before 18 unless after marriage the child continues wholly dependent upon the parent.”

¶6We hold that Nancy Carol, as a person over 18 at the time of her father’s death, is not a “child” as defined in G.S. 97-2(12), is therefore not “next of kin” as defined in G.S. 97-40, and for that reason is not entitled to “next of kin” compensation conferred by G.S. 97-38(3). Nancy Carol is entitled to compensation as a partial dependent, determined under G.S. 97-38(2).

¶7The order and award appealed from is vacated and this proceeding is remanded to the Industrial Commission for proper order and award consistent with this opinion.

¶8Remanded.

BROCK and HedricK, JJ., concur.
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