
60 S.E.2d 106 (1950)
232 N.C. 200
ESSICK
v.
CITY OF LEXINGTON et al.
No. 678.
Supreme Court of North Carolina.
June 9, 1950.
*111 S. A. DeLapp, Don A. Walser, Lexington, for plaintiff, appellant.
S. A. DeLapp, Don A. Walser, Lexington, Smith, Wharton, Sapp & Moore, Greensboro, for Dixie Furniture Company, H. T. Link and A. F. Taylor, additional defendants, appellants.
Jones & Small, Charlotte, John H. Small, Charlotte, P. V. Critcher, Lexington, for City of Lexington and Lexington Utility Commission, defendants, appellees.
SEAWELL, Justice.
On this appeal we have to deal with a variety of unusual claims set up by the appellees and controverted by the appellants, and quite a number of novel concepts of applicable law relating to the defenses available in the instant case. The *112 legal controversy arises in part over the apparent inability to reconcile provisions of the Workmen's Compensation Act with the common law, which it very substantially amends, and in many particulars, indeed those most essential to the effectiveness of the act, it abrogates.
We may observe initially that the very life of the Workmen's Compensation Act lies in its invasive and innovating substitution of statute law in a field theretofore left entirely to the common law,in the retreat from its outmoded methods of the common law to a more modern concept of economy and industry and related law; from uncertainty and war and waste to security and peace and productivity in industry and labor. Where radical and systematic changes have been made in setting up a system of such wide scope as we find in the Workmen's Compensation Act, and one so markedly remedial in its nature, the break with the past must necessarily be viewed with liberality in order to accomplish its purposes; and its provisions, liberally construed, given that effectiveness which alone will protect the act from erosion and regression.
The Workmen's Compensation Act is not a mere island in the sea of common law. The statutes creating it, amended from time to time, are superior to the common law in those respects in which they can and do, amend or abrogate it. There is no presumption of superiority in the common law where they seem to clash.
In order that the rationale of this decision may be clear, we take up the various motions, orders and judgments of the court in the order presented in the record.
On the final hearing the judge allowed the plaintiff's motion to strike out all of the second further answer and cross-action of the answer of the Utility Commission, including paragraphs 16-26, and from this there was no appeal, it is not before us.
The City of Lexington demurred to the complaint as not stating a cause of action (a) on the ground that it showed no negligence of defendant and (b) that it appears on the face of the complaint that plaintiff's intestate was contributorily negligent in bringing about his injury and death. And on the hearing in this Court the Utility Commission demurred to the complaint, ore tenus, on similar grounds.
As appears in the statement, the Dixie Furniture Company, employer, and H. T. Link and A. F. Taylor, employees, respectively the treasurer and the superintendent of the plant, all referred to as "additional parties," were made parties by order of the clerk of the court, from which order the said additional parties appealed.
On the hearing of the appeal here the "additional parties" above named, demurred ore tenus "to the cross-action against them" on the grounds stated above.
1. On the hearing in the Superior Court the judge declined to allow the demurrer to the complaint based on the ground it did not allege negligence on the part of defendant; but sustained the demurrer and motions to dismiss on the ground that it appeared conclusively on the face of the complaint that plaintiff's intestate was contributorily negligent in bringing about his injury. On this demurrer that question alone is before us; and on examination of the allegations of the complaint we are of the opinion that the demurrer in that respect should not have been sustained, and the order to the contrary is reversed.
As the case is yet for trial before the jury, we make no extended discussion of the point, simply saying that contributory negligence of the plaintiff's intestate does not appear on the `face of the complaint as a matter of law.
2. The question of additional parties may be considered in connection with the ore tenus demurrer of the "additional defendants" to any cross action against them set out in the answer.
There are three of the additional partiesthe employer, Dixie Furniture Company, and the employees Link and Taylor. If these employees, Link and Taylor are under the protection of the act in the same manner that their employer is protected by it, it is manifest that they have no business in this action as parties. And *113 the same result will follow if they have no rights to be dealt with in the cross-action.
The appellees point out that since it has been held by this Court that an employee may maintain a common law action against a fellow employee for negligent injury, although both are within the "coverage" of the Workmen's Compensation Act, ergo the common law should be available to a third person in an action brought against him for negligence, in which he may plead, contra, the negligence of the employer in an action under the statute, G.S. § 97-10, to the extent of the subrogation therein sought. Avoiding for the nonce the non sequitur in that reasoning (to which we later refer), we discuss the two cases which the defendants cite as supporting their position: Tscheiller v. National Weaving Company, 214 N.C. 449, 199 S.E. 623, and McCune v. Rhodes-Rhyne Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219.
These cases bring up the construction of G.S. § 97-9 of the Workmen's Compensation Act which has not hitherto been reviewed by this Court. This section of the act brings within the same immunity afforded the employer "those conducting his business." If the defendants Link and Taylor come within that definition they have obviously no place as parties defendant in this action. In neither of these cases was G.S. § 97-9 brought to the attention of the Court or mentioned in the opinions. We think this fact is significant in our present and first construction of the statute.
In Tscheiller v. Weaving Co., the plaintiff was employed by the defendant company along with several hundred other persons. She brought the action against the Weaving Company and an individual, Banks McArver, a fellow employee, who was engaged in selling for the company sandwiches, food and drinks, exclusively to the employees of the mill. McArver was in full charge of that activity. She brought the suit to recover for injuries following the consumption of toxic food sold by McArver, acting for the company. The presumption of the adoption of the Workmen's Compensation Act by all the parties prevailed and the suit was dismissed as to the Mill Company. It was retained as to McArver, as a common law action, who was held not to be within the protection of the Act.
McArver was clearly conducting his employer's business in that particular instance by any definition we may give that term; and we do not understand that the statute means that the persons protected by the Act in the same manner as the employee must take part in the conduct of all the employer's business activities. Ordinarily there is no individual in a corporation so omnipotent; nor is there anyone but the master whose influence is so all-pervasive. We have no space to call attention to the contradictions and fantastic situations that must arise under the application of G.S. § 97-10 unless § 97-9 is given its weight in pari materia interpretation of both sections, and the immunity given in Section 97-9 to "those conducting his business" be given a liberal construction and its definitions and intendments carried through the provisions of Section 97-10.
Otherwise, for example, the injured employee may sue his fellow employee under the common law, but not his employer; and yet standing in the shoes of the original employee as subrogee, the employer may sue its other employee and recover out of him in complete subrogation for all it has had to pay as an award without the slightest recognition of any coverage of the act or immunity granted by Sec. 97-9.
In the McCune case the employee was subjected to a vicious assault by the foreman in effecting his discharge and ejectment from the premises. Here again there is no question the foreman was the superior of McCune on whom the assault was made; and if considered as negligence should be immune from a common law suit under the definition in G.S. § 97-9. However, this case might well have been decided on the principle that a vicious assault by a fellow workman acting as alter ego was not within the contemplation of the Act and it conferred no immunity. We quote from Horovitz, "Injury and Death under Workmen's Compensation Laws," p. 336: "Where the employer is guilty of a felonious or wilful assault on an employee *114 he cannot relegate him to the compensation act for recovery. It would be against sound reason to allow the employer deliberately to batter his helper, and then compel the worker to accept moderate workmen's compensation benefits, either from his insurance carrier or from himself as self-insurer. The weight of authority gives the employee the choice of suing the employer at common law or accepting compensation." See cited cases.
At any rate, `for the reasons stated, these cases are not controlling here.
Link, as treasurer, and Taylor as superintendent of the plant, were clearly within the pale of 97-9, as those who conduct the business and entitled to the immunity it gives.
The defendants, however, have admitted that they have no right, under G.S. § 1-240, or other law, to bring the "additional defendants" in for the purpose of contribution as joint tort-feasors. Brown v. Southern R. Co., 202 N.C. 256, 162 S.E. 613.
Furthermore, neither Link nor Taylor is a necessary or proper party to any crossaction or defense against the employer in respect to its demand for reimbursement by reason of subrogation arising from the fact that it has paid an award. They have paid no award and have no interest in the subject, no right to be dealt with for complete determination of the controversy. The motion by the "additional defendants" to be dismissed as parties to the action should have been allowed.
The making of the employer, Dixie Furniture Company, a party defendant, and retaining it as such brings up a more serious question.
Under Brown v. Southern R. Co., 204 N.C. 668, 169 S.E. 419, when an award has been made and the employer has paid it, or is bound to do so, an action at common law may be brought by the employer, or the injured employee, or in case of death, by the personal representative of the deceased employee, in the manner set out in the statute, G.S. § 97-10, in which the employer may, on the principle of subrogation, become reimbursed pro tanto for the award so paid. And as against this right, the party thus sued may plead in bar of recovery by subrogation the negligence of the employer in producing the injury.
As the pleadings now stand we are of the opinion that the making of Dixie Furniture Company in the case as a party defendant is not justified.
It follows that the judgment of the court below dismissing plaintiff's action on the ground of contributory negligence of the intestate Essick and retaining the "additional defendants" as parties defendant in the action is in error and must be reversed. It is so ordered.
The cause is remanded to the Superior Court of Davidson County for such further proceedings as may be proper.
Reversed and remanded.
