Curlee v. Duke Power Co.
| Decision Date | 10 January 1934 |
| Docket Number | 581. |
| Citation | 172 S.E. 329,205 N.C. 644 |
| Parties | CURLEE v. DUKE POWER CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Sink, Judge.
Action by James Curlee, administrator of John Curlee, deceased against the Duke Power Co. and others. From a judgment dismissing the action as to named defendant, plaintiff appeals.
Affirmed.
This is an action for actionable negligence, brought by plaintiff against the defendant Duke Power Company, and others. The plaintiff in the complaint alleges that his intestate was killed by the negligence of defendant Duke Power Company, in July, 1926. The complaint also charges a conspiracy on the part of the Duke Power Company, the physician, and undertaker to suppress the fact of his intestate's death to avoid liability. That the death of plaintiff's intestate was not discovered by his relatives until the latter part of 1931. "That, as plaintiff is informed and believes, all of the defendants, with full knowledge of the fact that John Curlee suffered death by reason of the negligence of the defendant, Duke Power Co., entered into a scheme or conspiracy to suppress the facts regarding John Curlee's death and to withhold such facts from his relatives, said scheme or conspiracy being formed for the purpose of preventing a suit to recover damages for the wrongful death of plaintiff's intestate and in that manner to defeat the legal rights of the estate of John Curlee; that in furtherance of such scheme or conspiracy the defendant, Dr H. H. Newman, failed to file a death certificate with the Register of Deeds of Rowan County, North Carolina, and failed to make a report as acting coroner to the Clerk of the Superior Court of said County as required by law; that the defendants, Wright & Son, failed to make a record of the death and burial of the said John Curlee; that all of the defendants withheld knowledge of the facts from the press and that none of the defendants made any attempt whatever to notify John Curlee's relatives of his death."
The plaintiff further alleges in the complaint that, on account of the above facts, the plaintiff and other relatives of deceased did not know of such wrongful death and were unable to find out about it by the exercise of reasonable diligence. It is further alleged that the relatives of the deceased lived at Wadesboro, N. C.
The record discloses that Lee Wright and John Wright do not compose the firm of Wright & Son, but that Geo. W. Wright is the sole owner of the Wright undertaking establishment in Salisbury, N.C. He was thereafter made a party defendant.
Plaintiff duly qualified as administrator of the estate of John Curlee, deceased, on February 16, 1932. The summons in this action was issued on January 4, 1933.
The defendant Duke Power Company demurred to the complaint, as follows: "That this Court is without jurisdiction in the premises for that it appears from the plaintiff's complaint that John Curlee met his death in the Spring or Summer of the year 1926, more than one year prior to the institution of this action, and that section 160 of the Consolidated Statutes, granting recovery for death by wrongful act, prescribes that the action must be brought within one year from death and that such requirement is jurisdictional."
The defendant in its brief says: "While the allegations set out in the plaintiff's complaint and amended complaint must be taken as true for the purpose of this appeal, it is only fair to point out to the Court that these allegations would be denied had the defendants filed answer."
The action against the defendants Geo. W. Wright and Dr. H. H. Newman has been removed to Rowan county, N. C., and abides the decision in this case.
The judgment in the court below is as follows: "This cause coming on to be heard and being heard at the March 13th Term, 1933, of the Superior Court of Forsyth County, before His Honor H. Hoyle Sink, Judge Presiding, upon the plaintiff's complaint and amended complaint and upon the demurrer interposed by the defendant, Duke Power Company, to the plaintiff's complaint and amended complaint, and after arguments of counsel, the court being of the opinion that the demurrer interposed by the Duke Power Company should be sustained; Now, therefore, it is Ordered, Adjudged and Decreed that the demurrer interposed by Duke Power Company be and the same is hereby sustained and the plaintiff's action is hereby dismissed as to the Duke Power Company."
The plaintiff excepted and assigned error to the judgment as signed, and appealed to the Supreme Court.
E. M. Whitman, of Winston Salem, for appellant.
Manly, Hendren & Womble, of Winston Salem, for appellees.
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