Best v. Town Of Kinston

• Decision Date: 17 March 1890
• Citation: 10 S.E. 997,106 N.C. 205
• Court: North Carolina Supreme Court
• Parties: Best v. Town of Kinston.

10 S.E. 997

(106 N.C. 205)

Best

v.Town of Kinston.

Supreme Court of North Carolina.

March 17, 1890.

Death by Wrongful Act—Limitation of Action.

Code N. C. § 1498, provides that "whenever 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. " Held, that an action under the statute, brought more than a year after the death of an intestate, is barred, though no administrator was appointed during that time.

S. W. Isler, for plaintiff.

Geo. Rountree, for defendant.

Shepherd, J. Civil action, tried at fall term, 1889, of Lenoir superior court, before Bynum,.T. This action is brought by the administratrix of John H. Best, deceased, to recover damages resulting from the death of her intestate, occasioned, it is alleged, by reason of the negligence of the defendant. Such an action could not be brought at common law, and is only entertained by the courts under the provision of Code, § 1498, ¹ which embraces the principal features of the humane legislation known as "Lord Campbell's Act." The period prescribed for the commencement of such an action is "one year after the death of the intestate, " and it has been decided in several states "that the right of actionvests at the death which is the casue of action, " and that the statute of limitation begins to run from that time, although an administrator has not been appointed. Pierce, R. R. 400, citing Fowlkes v. Railroad Co., 9 Heisk. 829, 5 Baxt. 663: Railroad Co. v. Hendricks, 41 Ind.48; Needham v. Railroad Co., 38 Vt. 294, 306. See, also, Wood, Ry. Law, § 415. The cases cited by the learned counsel for the plaintiff (in which the non-existence of an administrator is said to be material) relate only to cases arising under the general law of limitations and presumptions, and have no application to a case under the above section of the Code. It has so been expressly held by this court in Taylor v. Iron Co., 94 N. C. 525. The court says that " this is not strictly a statute of limitation. It gives a right of action that would not otherwise exist, and the action to enforce it must be brought within one year after the...