Avery v. Brantley

• Decision Date: 17 March 1926
• Docket Number: 157.
• Parties: AVERY v. BRANTLEY ET AL.
• Court: North Carolina Supreme Court

131 S.E. 721

191 N.C. 396

AVERY v. BRANTLEY ET AL.

No. 157.

Supreme Court of North Carolina

March 17, 1926

Appeal from Superior Court, Craven County; Bond, Judge.

Action by Leslie Avery against Ada T. Brantley, administratrix of Edna Earle Avery, Ada T. Brantley, individually, and another. Judgment for defendants, and plaintiff appeals. Reversed.

Statutes relating to entirely different subject-matter cannot be construed in pari materia.

This was a civil action in which the plaintiff, by a petition before the clerk, sought to obtain one-half of the money recovered by the defendant administratrix in a civil action theretofore tried in the superior court of Craven county. The plaintiff's petition was denied. An issue of fact was raised, and the cause was transferred to the civil issue docket, and tried at the November term of the superior court. From the pleadings the following facts were admitted:

"First. That on the 13th day of August, 1923, Edna Earle Avery, of the age of four years, came to her death through wrongful and negligent acts of the Benevolent Protective Order of Elks Lodge No. 764, New Bern, N. C., etc.

Second. That Ada T. Avery, now Ada T. Brantley, qualified as administratrix of the estate of the said Edna Earle Avery on the 27th day of August, 1923, and brought suit for negligence against said Elks Lodge, as more fully appears by the judgment roll in said action in the office of the clerk, and the said administratrix gave the National Surety Company, a corporation, as her surety.

Third. That at the May term, 1925, of the superior court of Craven county the said administratrix recovered judgment against the said Elks Lodge for $2,000 on account of the wrongful and negligent death of the said Edna Earle Avery, as above recited, and the sum of $2,000 was duly paid to the said administratrix after she gave bond, and is now in her custody.

Fourth. That at the time of her death the said Edna Earle Avery was four years of age and unmarried, and died without leaving any husband or child or issue of a child, but leaving a father Leslie Avery, the petitioner, and a mother, Ada T. Avery, now Ada T. Brantley."

Plaintiff then moved for judgment. Motion was denied, and the court submitted the following issue to the jury:

"Did the plaintiff Leslie Avery, he being the father, willfully abandon the care, custody, nurture, and maintenance of Edna Earle Avery to its mother, and thereby forfeit all rights to the care, custody, and services of said Edna Earle Avery?"

The jury answered the issue, "Yes," and the judge signed the judgment set out in the record, which adjudges that the plaintiff is not entitled to recover any part of the funds in controversy.

The plaintiff made numerous exceptions, assigned error, and appealed to the Supreme Court.

The material assignments of error are:

"(1) The court erred in refusing to grant the plaintiff's motion for judgment on the admitted facts.

(2) The court erred in refusing to sign the judgment tendered by plaintiff on admitted facts.

(3) The court erred in submitting the issue as above set forth."

D. L. Ward and W. B. Rouse, both of New Bern, for appellant.

Guion & Guion and H. P. Whitehurst, all of New Bern, for appellees.

CLARKSON J.

The plaintiff, Leslie Avery, and his wife, Ada T. Avery (now Ada T. Brantley) had one child, Edna Earle Avery, who, when about four years old, on August 13, 1923, was wrongfully and negligently killed by the Benevolent Protective Order of Elks Lodge No. 764, New Bern, N.C. Her mother, Ada T. Avery (now Brantley), qualified as administratrix, and brought suit against the Elks Lodge, and recovered $2,000. The plaintiff claims, as the father of the child, one-half of the recovery. The only question for our determination is, Is he entitled to it? We are of opinion that he is, and the exceptions and assignments of error by plaintiff are well taken.

C. S. § 160, is as follows:

"When the death of a person is caused by a wrongful act, neglect, or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy. In all actions brought under this section the dying declarations of the deceased as to the cause of his death shall be admissible in evidence in like manner and under the same rules as dying declarations of the deceased in criminal actions for homicide are now received in evidence."

The distribution of personal property in case of intestacy referred to is as follows:

"C. S. § 137, subsec. 6: If in the lifetime of its father and mother, a child dies intestate, without leaving husband, wife or child, or the issue of a child, its estate shall be equally divided between the father and mother. If one of the parents is dead at the time of the death of the child, the surviving parent shall be entitled to the whole of the estate. The terms 'father' and 'mother' shall not apply to a stepparent, but shall apply to a parent by adoption."

In Broadnax v. Broadnax, 76 S.E. 217, 160 N.C. 435, 42 L. R. A. (N. S.) 725, it is said:

"In the Baker Case [Baker v. R. R., 91 N.C. 310], the court says: 'The administrator thus occupies the place of trustee, for a special purpose, of such fund as he may obtain by the suit, holding

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