The opinion
BeogdeN, J.
Does the compensation agreement constitute an award within the meaning of section 11 of the Compensation Act ?
This suit was instituted on 4 April, 1930, to recover damages for personal injury. Subsequently, to wit, on 31 May, 1930, a compensation agreement was filed-with the Industrial Commission, but said Commission either failed or declined to approve the same. Section 11 of the Compensation Act permits an employee to recover damages for injury against “a third person or persons before an award is made under this act and prosecute the same to its final determination; but either an acceptance of an award hereunder, or the procurement of a judgment in an action at law shall be a bar to proceeding further with alternate remedy.” The question then arises: What is an award as contemplated by the statute? Section 58 prescribes the legal essentials of an award. An award is conceived by the statute to be a present determination of the merits of the claim after a hearing of the parties and their witnesses. It must be “filed with the records of proceedings, and copy of the award shall immediately be sent to the parties in dispute.” Consequently the award must be in writing and in controverted cases must be accompanied by “a statement of findings of fact, rulings of law and other matters pertinent to the questions at issue.” Manifestly no award has been made to the plaintiff.
While the terms of the statute are plain, it is perhaps not amiss to note that courts in other jurisdictions have held that a compensation agreement filed but not approved does not constitute an award. See'
Brown v. R. R., ante,
256;
Bruce v. Stutz Motor Co.,
148 N. E., 161 ;
American Mutual Life Ins. Co. v. Hamilton,
135 S. E., 21 .
By virtue of the express terms of the statute the right of the carrier does not arise until an award has been made. Hence the trial judge erred in permitting the carrier to become a party to the action.
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. It is contended that it was error to make the receivers of defendant parties to the-suit. Apparently the suit was begun before receivers were appointed for the defendant. However, it is to be assumed in the absence of facts to the contrary that the judgment was supported by the facts before the court at the time. Moreover if the action was commenced before receivers were appointed, it was entirely proper that they should be made parties.
Blade v. Power
Co., 158 N. C., 468 , 74 S. E., 468 .
Modified and affirmed.