Hines v. Foundation Co. of New York

• Decision Date: 28 November 1928
• Docket Number: 335.
• Parties: HINES v. FOUNDATION CO. OF NEW YORK.
• Court: North Carolina Supreme Court

145 S.E. 612

196 N.C. 322

HINES v. FOUNDATION CO. OF NEW YORK.

No. 335.

Supreme Court of North Carolina

November 28, 1928

Appeal from Superior Court, Durham County; W. M. Bond, Judge.

Action by Marion Hines, as administrator of the estate of James Hines, deceased, against the Foundation Company of New York. Judgment for defendant, and plaintiff appeals. No error.

Action to recover damages for wrongful death of plaintiff's intestate.

James Hines died in Greensboro, N. C., on July 23, 1926. Plaintiff was appointed as his administrator by the clerk of the superior court of Durham county, N. C., on August 17, 1926. Summons in this action was issued on August 17, and served on defendant on August 18, 1926. In the complaint filed on August 17, 1926, plaintiff alleged that the death of his intestate was caused by the negligence of defendant; he prayed judgment that he recover of defendant, as damages resulting from the death of his intestate, the sum of $10,000. His cause of action is founded upon a statute of this state. C. S. § 160.

At the trial in the superior court, the jury found that the death of James Hines, plaintiff's intestate, was caused by the negligence of defendant, as alleged in the complaint.

In bar of plaintiff's recovery of damages, as prayed for in his complaint, defendant relied upon a settlement of the claims of the next of kin of the deceased made by defendant with the administratrix of James Hines, deceased, appointed by the probate court of Florence county, S. C., on August 20, 1926 pursuant to an application for such appointment made on July 31, 1926, and upon a release executed on August 20, 1926, by said administratrix.

The jury found that the release is valid, and that the claims of the next of kin of deceased against defendant, on account of his death, had been settled and paid.

From judgment on the verdict, denying plaintiff a recovery of damages in this action, plaintiff appealed to the Supreme Court.

R. O Everett and V. S. Bryant, both of Durham, for appellant.

Fuller Reade & Fuller, of Durham, for appellee.

CONNOR J.

James Hines died in the city of Greensboro, in this state, on July 23, 1926. His death was caused by the negligence of defendant a corporation organized and doing business under the laws of the state of New York. Deceased, at the date of his death, was employed by defendant as a laborer, at Greensboro, N. C., where defendant was engaged in the construction of a hotel. Defendant is liable for such damages as are a fair and just compensation for the pecuniary injury resulting from the death of the deceased, to be recovered by his administrator, in an action brought within one year after his death. The amount recovered in such action is not liable to be applied as assets in the payment of the debts of deceased, but must be disposed of in accordance with the provisions of the statute of distribution of this state. C. S. §§ 160 and 161.

On July 31, 1926, Louvenia Hines, widow of James Hines, applied to the probate court of Florence county, S. C., for letters of administration upon the estate of the decedent. In her application for such letters, which was in writing, the said Louvenia Hines represented to said court that James Hines was dead; that at the date of his death, and prior thereto, he was a resident of Florence county, S. C.; that his next of kin and heirs at law were Louvenia Hines, his widow, and Precious Hines, his daughter; that there were no assets belonging to the estate of the decedent, except a claim for unliquidated damages against the Foundation Company, the defendant in this action. A citation was made by said court, addressed to all and singular the kindred and creditors of James Hines, deceased, admonishing them to appear before the judge of said court, on August 16, 1926, to show cause, if any they had, why the application of the said Louvenia Hines should not be granted. Thereafter on August 20, 1926, an order was entered by said court, appointing the said Louvenia Hines administratrix of James Hines, deceased, and directing that letters of administration upon his estate be issued to her. The said Louvenia Hines duly qualified as administratrix of James Hines, deceased, and thereafter, upon the payment to her, as such administratrix, of the sum of $1,500, by defendant, she executed the release set up in defendant's answer as a bar to plaintiff's recovery in this action. This release is sufficient in form to discharge defendant from liability for any other or further sum as damages resulting from the death of James Hines. The sum of $1,500, paid by defendant to Louvenia Hines, administratrix of James Hines, has been disposed of in accordance with the provisions of the statute of distribution of South Carolina, which is identical with the statute of this state. One-third of said sum has been paid to the widow of deceased, and the remaining two-thirds to his only child, a daughter.

Plaintiff offered evidence tending to show that the deceased, James Hines, at the date of his death, at Greensboro, N. C., was a citizen of North Carolina, and a resident of Durham county in said state; that Louvenia Hines, who executed the release set up in defendant's answer, was a citizen of South Carolina; that she...