Stevenson v. City of Durham , 12 N.C. App. 632 ( 1971 )

CAMPBELL, Judge.

As stated in the record, “The question presented by the appeal is as follows: Does the definition of brothers and sisters set out in N.C. § 97-2(12) apply to the definition of ‘next of kin’ set out in N.C. § 97-40?”

A similar question was presented to this Court and decided in the case of Jones v. Sutton, 8 N.C. App. 302, 174 S.E. 2d 128 (1970), and this Court, speaking through Judge Britt, held that G.S. 97-2(12) defined a person over eighteen at the time of father’s death as not a child and therefore is not “next of kin” as defined in G.S. 97-40. We think that case is controlling in the present matter.

The appellants, in a very persuasive brief, “urge this Court to reconsider its decision in the Jones case.”

The Jones case was filed 27 May 1970. The 1971 amendment did not become effective until 1 July 1971 which was after the death in this case. We think the Jones case properly construed the Workmen’s Compensation Act and correctly held that G.S. 97-40 should be construed in pari materia with G.S. 97-2(12). We feel strengthened in this view by the fact that the Supreme Court of North Carolina in Horney v. Pool Co., 267 N.C. 521, 148 S.E. 2d 554 (1966), stated:

“ ... It is noted that G.S. 97-40 was amended in 1965 (Session Laws of 1965, Chapter 419) so that, under certain circumstances, the father, mother or sister of a deceased employee, without reference to dependency, would be entitled to receive death benefits under the Workmen’s Compensation Act. ...” (Emphasis added.)

We are of the opinion that this is not one of the “certain circumstances” when brothers and sisters are entitled to receive death benefits. We adhere to our previous position in the Jones case and hold that G.S. 97-40 must be construed with G.S. 97-2(12).

Affirmed.

Judge Hedrick concurs. Chief Judge Mallard dissents and files a dissenting opinion.