Bolick v. Southern Ry. Co

Decision Date09 May 1905
CourtNorth Carolina Supreme Court
PartiesBOLICK. v. SOUTHERN RY. CO.

ABATEMENT AND REVIVAL—ACTIONS FOR PERSONAL INJURIES—MERGER IN ACTION FOR DEATH.

1. The cause of action for death by wrongful act given by Code, §§ 1498, 1499, 1500, does not accrue until the death which is sued for, and cannot be set up by amendment to an action brought by the decedent himself, prior to his death, for the injuries which ultimately resulted in such death.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, § 15.]

2. Code, § 1490, provides that on the death of any person all demands whatever, except as thereinafter provided, shall survive to and against his administrator. Section 1491, subd.2, provides that causes of action for "injury to the person, where such injury does not cause the death of the injured party, " do not survive. Sections 1498, 1499, and 1500 give an action to the administrator for wrongful death, and authorize the distribution of the proceeds of recovery as in case of intestacy. Held, that a cause of action for personal injuries does not survive to the administrator in case of the death of the injured person as the result of such injuries, but abates with such death, and merges in the cause of action for the death, which then becomes the only available remedy.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, §§ 15, 33.]

Appeal from Superior Court, Catawba County; McNeill, Judge.

Action by Frank Bolick against the Southern Railway Company. Plaintiff died, and his administrator requested to be substituted, whereupon the court ordered the action abated, and the administrator appealed. Affirmed.

Self & Whitener and T. M. Hufham, for appellant.

S. J. Ervin, for appellee.

CLARK, O. J. This was an action begun in May, 1903, for personal injuries sustained by plaintiff by reason of the alleged negligence of the defendant. The plaintiff died in April, 1904, and at May term following his administrator asked to be substituted as party plaintiff, and allowed to prosecute the action; alleging that the personal injuries sued for caused the death of his intestate. The defendant moved the court that the action abate by reason of the death. This last motion was allowed, and the administrator appealed.

The action for personal Injuries was maintainable at common law, and abated upon the death of the plaintiff. The right of action for death caused by the wrongful neglect or default of another was first conferred by Lord Campbell's act (9 & 10 Victoria), which begins by expressly reciting that at common law action for such cause could not be maintained. With some variations, that statute has been adopted in probably every state of the Union. It has been uniformly held that such statutes confer a new right of action which did not previously exist. 8 A. & E. Enc. (2d Ed.) 858. In this state an action for death by wrongful act was first given by chapter 39, p. 97, Laws 1854-55, which now, with some modifications, is Code, §§ 1498, 1499, 1500. The history of this legislation and summary of decisions is fully given in Killian v. Railroad, 128 N. C. 261, 38 S. E. 873.

As the cause of action for the wrongful death could not accrue till the death, it could not be set up by an amendment to this action, which was instituted by the plaintiff himself. Gillam v. Ins. Co., 121 N. C. 369. 28 S. E. 470; Powell v. Allen, 103 N. C. 46. 9 S. E. 138; Bynum v. Powe, 101 N. C. 412, 8 S. E. 136.

It is equally clear that the cause of action for personal injuries abated upon the death of the plaintiff, though "the injury subsequently resulted in death." Killian v. Railroad, supra. In Harper v. Commissioners, 123 N. C. 118, 31 S. E. 384, Scarlett v. Norwood, 115 N. C. 286, 20 S. E. 459, and Hannah v. Railroad, 87 N. C. 351, it was held that a cause of action for a personal injury did not survive the death of the injured party; the court in the latter case saying that Peebles v. Railroad, 63 N. C. 238, did not apply since the adoption of Code, § 1490. It is provided by section 1491: "The following rights in action do not survive: * * * (2) Causes of action for false imprisonment, assault and battery or other injuries to the person, where such injury does not cause the death of the injured party." "Where such injury does not cause" means simply "unless...

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31 cases
  • Renn v. Seabd. Air Line Ry
    • United States
    • North Carolina Supreme Court
    • November 17, 1915
    ...858, Horton v. S. A. L. Ry., 162 N. C. 424, 78 S. E. 494, Tilghman v. S. A. L. Ry., 167 N. C. 163, 83 S. E. 315, 1090, Bolick v. Railroad, 138 N. C. 370, 50 S. E. 689, and Burnett v. Railroad, 163 N. C. 186, 79 S. E. 414. 3. I think the court also errs in holding that there is any evidence ......
  • Taylor v. Norfolk S. Ry. Co.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • February 6, 2015
    ...death, any survivorship claim merges into the wrongful death claim, with the latter providing the “only remedy.” Bolick v. S. Ry. Co., 138 N.C. 370, 50 S.E. 689, 690 (1905) ; accord Blind, 650 S.E.2d at 29 (“[W]e hold that when a single negligent act of the defendant causes a decedent's inj......
  • Sparks v. Oxy-Health, LLC
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • September 15, 2015
    ...caused the decedent's death the survival action is moot and only a wrongful death claim may proceed. See Bolick v. Southern Ry. Co., 138 N.C. 370, 50 S.E. 689, 690 (1905); State Auto Ins. Co. v. Blind, 185 N.C.App. 707, 712–13, 650 S.E.2d 25 (2007); cf. Alston, 177 N.C.App. at 338–39, 628 S......
  • Renn v. Seaboard Air Line Ry.
    • United States
    • North Carolina Supreme Court
    • November 17, 1915
    ... ... 858, Horton v. S. A. L. Ry., 162 ... N.C. 424, 78 S.E. 494, Tilghman v. S. A. L. Ry., 167 ... N.C. 163, 83 S.E. 315, 1090, Bolick v. Railroad, 138 ... N.C. 370, 50 S.E. 689, and Burnett v. Railroad, 163 ... N.C. 186, 79 S.E. 414 ...          3. I ... think the ... ...
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