Baker v. Raleigh
| Decision Date | 31 October 1884 |
| Citation | 91 N.C. 308 |
| Court | North Carolina Supreme Court |
| Parties | G. S. BAKER, Adm'r, v. RALEIGH AND GASTON RAILROAD COMPANY. |
CIVIL ACTION, tried at Spring Term, 1884, of NASH Superior Court, before Shepherd, J.
The plaintiff, as administrator of Duffin Perry, brings this action under the act of April 6th, 1869, against the defendant company for the recovery of damages for causing the death of his intestate, a passenger on one of its cars, by reason of the negligent running and mismanagement of its trains in charge and under control of its officers and employees. The defendant in its answer denies the imputed negligent running of its trains, declares that the intestate's own negligence contributed to his injury and death, and in a supplemental answer sets up a release from one Alice Perry, the widow of the intestate, of her moiety of the claim of damages asserted in the action.
At fall term, 1883, the cause was referred to arbitrators, who made and reported their award at the succeeding term as follows:
(Signed by W. T. Dortch, Walter Clark and C. M. Busbee, arbitrators.)
No exception was taken to the report, and thereupon the defendant paid over to the plaintiff, without prejudice to the action, the sum of seven hundred dollars, on account of the other distributee.
On the plaintiff's motion for judgment upon the award for the moiety due to Alice Perry, the defendant insisted that the award “should stand released save for reasonable counsel fees and expenses incurred prior to the notice of release given the plaintiff, such sum to be ascertained by the court or by a reference.”
The court refused to do this and “adjudged that the defendant should pay to the plaintiff the seven hundred dollars for Alice Perry's half interest in the recovery,” and thereupon the defendant appealed.
Messrs. Joseph J. Davis and A. M. Lewis & Son, for plaintiff .
Mr. Walter Clark, for defendant .
SMITH, C. J., after stating the case.
The statute which authorises the action to be brought by the personal representative of the deceased declares and directs that 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 act for the distribution of personal property in case of intestacy. THE CODE, ch. 33, § 1500.
The administrator thus occupies the place of trustee, for a special purpose, of such fund as he may obtain by the suit, holding it when recovered solely for the use of those who are entitled under the statute of distributions, free from the claims of creditors and...
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Miller v. Perry, Civ. A. No. 770.
...through, or under him; and this is so although the personal representative may be designated as the person to bring the action. Baker v. Raleigh R., 91 N.C. 308. The latter does not derive any right, title, or authority from his intestate, but he sustains more the relation of a trustee in r......
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Tieffenbrun v. Flannery
... ... Commissions of the administrator, court costs and expenses, ... and counsel fees may be paid out of the recovery. Baker ... v. R. R., 91 N.C. 308 ... (14) If ... the cause of action arose in a foreign state, issues of fact ... must be determined ... ...
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Well v. City Of Raleigh
...the intestate, for none such exists between them, in any proper sense of that term. This is well settled by our decisions. Baker v. Railroad Co., 91 N. C. 308; Taylor v. Cranberry Co., 94 N. C. 526; Best v. Kinston, 106 N. C. 205, 10 S. E. 997; Killian v. Railroad Co., 128 N. C. 261, 38 S. ......
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Harrison v. Carter
...of a trustee or agent of the beneficiary of the estate. Sherman and Redfield on Negli gence, Vol. 4, Sec. 826, p. 1874; Baker v. Raleigh & G. R. Co, 91 N.C. 308; Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216, 42 L.R.A, N.S, 725; Avery v. Brantley, 191 N.C. 396, 131 S.E. 721. Has the right......