Jones v. Sutton , 8 N.C. App. 302 ( 1970 )

Beitt, J.

Defendants 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.”

The 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.”

Nancy 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.”

G.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).

In 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 a 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.”

We 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).

The 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.

Remanded.

BROCK and HedricK, JJ., concur.