First Union Nat. Bank of N. C. v. Hackney, 277

• Decision Date: 15 December 1965
• Docket Number: No. 277,277
• Citation: 266 N.C. 17,145 S.E.2d 352
• Court: North Carolina Supreme Court
• Parties: FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Administrator c. t. a., d. b. n., of the Estate of Susan Borden Umphlett, Deceased, v. John N. HACKNEY, Executor of the Estate and Last Will and Testament of W. W. Umphlett, Jr.

Page 352

145 S.E.2d 352

266 N.C. 17

FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Administrator c. t. a., d. b. n., of the Estate of Susan Borden Umphlett, Deceased, v. John N. HACKNEY, Executor of the Estate and Last Will and Testament of W. W. Umphlett, Jr.

No. 277.

Supreme Court of North Carolina.

Dec. 15, 1965.

Gardner, Connor & Lee, Wilson, for plaintiff appellee.

Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, for defendant appellant.

BOBBITT, Justice.

Our wrongful death statute, G.S. § 28-173, in pertinent part provides: 'When 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 by the executor, administrator or collector of the decedent; * * * The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding five hundred dollars ($500.00) incident to the injury resulting in death; * * * but shall be disposed of as provided in the Intestate Succession Act.' (Our italics.)

In this jurisdiction, a wife has the right to sue her husband and recover damages for personal injuries inflicted by his actionable negligence. G.S. § 52-10; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; G.S. § 52-10.1. If her death is caused by the actionable negligence of her husband, G.S. § 28-173 creates and authorizes an action by her personal representative to recover for her wrongful death. King v. Gates, 231 N.C. 537, 57 S.E.2d 765. The only party who may maintain such action for the wife's wrongful death is 'the executor, administrator or collector of the decedent.' G.S. § 28-173; Hall v. Southern R. R. Co., 149 N.C. 108, 62 S.E. 899; Graves v. Welborn, 260 N.C. 688, 690, 133 S.E.2d 761, 3 A.L.R.3d 1225, and cases cited.

The persons who, under the Intestate Succession Act, G.S. Chapter 29, are entitled to the recovery in a wrongful death action are to be determined as of the time of the decedent's death. Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203; Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676. If Mrs. Umphlett had died a natural death, intestate, her husband and children would have been her beneficiaries under the Intestate Succession Act.

Plaintiff did not demur to defendant's alleged first defense. If, as plaintiff alleges, Mrs. Umphlett's death was caused by the actionable negligence of her husband there can be no recovery herein in respect of the share to which the husband (or his estate) would otherwise be entitled. 'Public policy in this jurisdiction, buttressed by the uniform decision of this Court, will not permit a wrongdoer to enrich himself as a result of his own misconduct.' Davenport v. Patrick, supra, and cases cited; In re Estate of Ives, 248 N.C. 176, 182, 102 S.E.2d 807, 72 A.L.R.2d 278.

Defendant's second, third and fourth defenses are based on these allegations: The husband survived the wife. The four children of the marriage, except as to the interest to which their father (or his estate) would be entitled but for his actionable negligence, are the beneficiaries of their mother's estate. They are the persons who, under the Intestate Succession Act, are entitled under G.S. § 28-173 to any recovery herein. These four children are also the beneficiaries of their father's estate. With the exception of the claim asserted in this action, 'there are no debts outstanding and unpaid, either for burial expenses or otherwise,' of either estate.

For present purposes, we treat these allegations as allegations of fact deemed admitted by plaintiff's demurrer. Defendant's allegation that the children are the real parties in interest as plaintiffs and as defendants is a legal conclusion not admitted by plaintiff's demurrer. 3 Strong, N.C. Index, Pleadings § 12, p. 627.

The questions presented are of first impression in this jurisdiction.

Based on his assertion that the children are the real parties in interest as plaintiffs and as defendants, defendant contends the action is in reality an action in which the children are suing themselves, that it cannot benefit the children and that it should be dismissed as futile.

'It is elementary that without adversary parties before it a court is without jurisdiction to render a judgment, and it therefore follows that one person cannot be both plaintiff and defendant in the same action.' 39 Am.Jur., Parties § 8. This is in accord with our decision in Newsom v. Newsom, 26 N.C. 381, where it is said that a suit and judgment in which the same person is both plaintiff and defendant is an absurdity and can have no legal efficacy. The question is whether this elementary legal principle applies to the facts now under consideration.

Defendant asserts the children are the real parties in interest as plaintiffs because they, since there are no outstanding claims for burial, hospital and medical expenses, are the persons who will receive, less expenses of litigation and administration, any amount plaintiff might recover herein. They cite in support of their contention Davenport v. Patrick, supra, and In re Estate of Ives, supra, in each of which the person entitled to the recovery is referred to as the real party in interest. However, the significance of the phrase as used in the cited cases must be considered in the context of the factual situation under consideration.

In Davenport, the administrator of the wife's estate instituted the action for wrongful death against the surviving husband. There being no children, the husband, under the applicable statute of distribution then in effect, was entitled to all of the personal estate of the wife. In Ives, the intestate, while a passenger in an automobile owned and operated by her son, was killed in a collision. The administrator and the son's liability insurer compromised the wrongful death claim. It was held that, since the compromise consideration was paid to the administrator in settlement of the son's liability for the alleged wrongful death of his mother, the son was not entitled to share in the distribution of the amount so received by the administrator. As stated above, these decisions are based on the proposition that no person will be permitted to profit from his own wrong. In the present action, it is not alleged or suggested that the children were in any way responsible for the mother's death. Hence, the basic principle on which Davenport and Ives were decided has no application.

Obviously, the children are not the real parties in interest within the meaning of that term as used in G.S. § 1-57. They have no right of action for the death of their mother. Howell v. Board of Com'rs., 121 N.C. 362, 28 S.E. 362. The right of action vests in the mother's personal representative. Graves v. Welborn, supra.

The personal representative who institutes a wrongful death action is not a mere figurehead or naked trustee but has authority as well as responsibility. See In re Estate of Ives, supra; McGill v. Freight, 245 N.C. 469, 474-475, 96 S.E.2d 438.

Defendant asserts the children are the real parties in interest as defendants because they are the beneficiaries of their father's estate. Defendant does not allege that use of any of the general distributable assets of their father's estate would be required to pay, in whole or in part, any judgment plaintiff might recover in this action. Defendant's allegations are silent as to whether the father had purchased a policy of liability insurance sufficient to cover, in whole or in part, his liability, if any, in respect of the claim asserted by plaintiff in this action.

Automobile liability insurance is a fact of present day life which defendant may not ignore. It is a matter of common knowledge that millions of car owners purchase automobile liability insurance. G.S. § 20-309 requires every owner of a motor vehicle, as a prerequisite to the registration thereof to show 'proof of financial responsibility' in the manner prescribed by G.S. Chapter 20, Article 9A. Swain v. Nationwide Mutual Insurance Co., 253 N.C. 120, 116 S.E.2d 482. Automobile liability insurance serves two purposes. It protects (1) the injured person and (2) the insured.

A liability policy purchased by the husband-father would constitute a valuable asset. During his lifetime, it would protect him in respect of his personal liability and preserve his general estate from depletion; and, upon his death, such policy would constitute a valuable asset of his estate and safeguard the general assets of his estate for distribution to the beneficiaries. Absent allegations that the husband-father did not have in force and effect a policy of automobile liability insurance sufficient to safeguard the general assets of his estate from liability, in whole or in part, for the payment of any judgment that might be obtained by plaintiff in this action, it does not appear that use of any of the general distributable assets of the father's estate would be required to pay, in whole or in part, such judgment.

The conclusion reached is that the facts alleged by defendant are insufficient to establish that this is in reality an action in which the children are suing themselves and cannot benefit by a recovery herein.

A second contention advanced by defendant is that the children, beneficiaries of both estates, should not be permitted to receive the distributable assets of their father's estate and also benefit from a recovery in this action. To do so, defendant contends, would permit the children to benefit from their father's wrongful conduct. The contention is without merit.

With reference to the father's estate, the benefits the children may...