Davenport v. Patrick

• Citation: 44 S.E.2d 203,227 N.C. 686
• Decision Date: 24 September 1947
• Docket Number: No. 89.,89.
• Parties: DAVENPORT. v. PATRICK.
• Court: North Carolina Supreme Court

44 S.E.2d 203

227 N.C. 686

DAVENPORT.

v.PATRICK.

No. 89.

Supreme Court of North Carolina.

Sept. 24, 1947.

Appeal from Superior Court, Washington County; J. Paul Frizzelle, Judge.

Action by C. N. Davenport, Jr., as administrator of the estate of Betty Gertrude Patrick, deceased, against Augustus R. Patrick, Jr., for the wrongful death of plaintiff's intestate as the result of defendant's negligent operation of an automobile in which intestate was riding. From a judgment for plaintiff in the amount of intestate's burial expenses, both parties appeal.

Affirmed on plaintiff's appeal, and reversed on defendant's appeal.

Civil action instituted October 18, 1944, by the plaintiff, administrator of the estate of Betty Gertrude Patrick, deceased, for the wrongful death of his intestate. The parties hereto entered into certain stipulations in the trial below, the pertinent part of which reads as follows:

"The defendant in this action, having renounced his right to administer upon the estate of his deceased wife, the plaintiff, C. N. Davenport, Jr., thereafter was duly appointed as administrator of the estate of Mrs. Betty Gertrude Patrick, deceased, and is now the duly qualified and acting administrator of the said estate. It is stipulated that plaintiff's intestate died as a proximate result of the negligent operation of an automobile owned by the defendant and in which he and his deceased wife and four other persons were riding and that this action was duly instituted within 12 months after the death of the said deceased; that the deceased in no wise contributed to the injuries alleged to have been suffered by her resulting in her death, and that she was riding in said automobile on said occasion as a guest of the defendant. It is stipulated that the said Mrs. Betty Gertrude Patrick died leaving no child nor representative of any child, leaving the defendant, her surviving husband, and that she also left her surviving her father and her mother. It is stipulated that the deceased was a young woman 16 years of age and that she was in good health mentally and physically and that for sometime prior to her death was earning as much as $45 per week and that her cost of living did not exceed $20 per week. It is stipulated that bills relating to and embracing funeral expenses in the aggregate sum of $889.47 have been filed with the plaintiff administrator; that the administrator is the undertaker who buried the deceased."

Whereupon the Court entered the following judgment: "It was agreed that the Court should render judgment upon the admissions of the parties contained in the foregoing stipulations and the principles of law applicable to and controlling the same without the intervention of a jury. Upon a careful consideration of the admissions contained in the stipulations hereinbefore set out in this action which was brought and is an action for actionable negligence against the defendant to recover damages for the death of plaintiff's intestate, who was the wife of the defendant, the Court is of the opinion that under the applicable principles of law the only recovery that can be had in this action is the actual amount of the burial expenses and the costs of the action. It is, therefore, Considered, Ordered, Adjudged and Decreed that the plaintiff have and recover of the defendant the actual amount of the burial expenses incurred in the burial of the plaintiff's intestate and the cost of this action, the amount of said burial expenses to be ascertained and determined in the due course of the administration of said estate by and before the Clerk in the exercise of his probate jurisdiction."

The plaintiff and the defendant appealed, and assign error.

W. L. Whitley and W. L. Whitley, Jr., both of Plymouth, for plaintiff.

Norman & Rodman of Plymouth, for defendant.

DENNY, Justice.

Plaintiff's appeal

The plaintiff excepts to an order of the Court below, allowing the defendant to amend his answer to show the relationship of the parties and to plead the wrongful conduct of the defendant as alleged by the plaintiff, as a bar to any recovery in this action.

In view of the stipulations entered into by the parties, the exception is rendered feckless.

The real question posed on plaintiff's appeal is simply this: Where the death of a wife was caused by the negligence of her husband, there being no issue of the mar-mage, can the administrator of the deceased wife recover from the husband for her wrongful death?

The plaintiff contends that what disposition may be made of the recovery in this action, has no bearing or limitation on the right of the plaintiff to maintain the action, as provided in G.S. § 28-173, and cites Warner v. Western North Carolina Railroad, Co., 94 N.C. 250. In that case a nonsuit was entered because the complaint did not allege that the intestate had next of kin. The Court said, in discussing this statute: "It seems that its purpose is to give the action for the recovery of damages in the case provided, without reference to who may become the beneficiaries, excluding creditors and legatees. * * * Nothing appearing to the contrary, the presumption was that the intestate left next-of-kin surviving him, and whoever insisted upon the contrary was bound to aver and prove the fact. University v. Harrison, 90 N.C. 385; Harvey v. Thornton, 14 111., 217; Lawson on Presumptive Ev., 198. And as the next-of-kin generally, in the order prescribed, would take the damages recoverable, it was for this reason not necessary to allege that the intestate had next-of-kin. If he had not, and this fact could avail the defendant, it should have pleaded and proven it as matter of defence."

We concede that ordinarily the Courts are not concerned as to how or to what particular person or persons a recovery in an action for wrongful death will be distributed, --that is the Courts have no favorites among distributees. But where it is made to appear that the beneficiary of the action was responsible for the death of plaintiff's intestate, another principle of law intervenes.

The Courts will look beyond the nominal party whose name appears on the record as plaintiff and consider the legal questions raised as they may affect the real party or parties in interest. The real party in interest in this action is not the administrator, but the beneficiary under the statute for whom the recovery is sought. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697; Pearson v. National Manufacture & Stores Corp., 219 N.C. 717, 14 S.E. 2d 811; Brown v. Southern Railroad Co., 202 N.C. 256, 162 S.E. 613; Holmes v. Wharton, 194 N.C. 470, 140 S.E. 93; Avery v. Brantley, 191 N.C. 396, 131 S.E. 721; Vaughn's Adm'r. v. Louisville & N.R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060; Robinson's Adm'r v. Robinson, 188 Ky. 49, 220 S.W. 1074; Dishon's Adm'r v Dishon's Adm'r, 187 Ky. 497, 219 S.W. 794, 13 A.L.R. 625. The beneficiary here is the defendant. For all practical purposes he is ...