Hoke v. Atl. Greyhound Corp.

• Decision Date: 08 May 1946
• Docket Number: No. 525.,525.
• Citation: 38 S.E.2d 105,226 N.C. 332
• Court: North Carolina Supreme Court
• Parties: HOKE. v. ATLANTIC GREYHOUND CORPORATION et al.

226 N.C. 332

38 S.E.2d 105

HOKE.

v.ATLANTIC GREYHOUND CORPORATION et al.

No. 525.

Supreme Court of North Carolina.

May 8, 1946.

Appeal from Superior Court, Mecklenburg County; Luther Hamilton, Special Judge.

Civil action by D. A. S. Hoke, ancillary administrator of the estate of Mary Gay Moores Sharpe, deceased, against the Atlantic Greyhound Corporation and others for wrongful death of plaintiff's intestate, for pain and suffering sustained by intestate and for expenses incurred between date of deceased's injury and date of her death. From an order sustaining a demurrer to and striking out the second and third causes of action, plaintiff appeals.

Reversed.

Civil action to recover damages resulting from alleged actionable negligence of defendants. The plaintiff, in his complaint, sets forth three separate causes of action allegedly proximately resulting from the same acts of negligence of defendants: The first cause of action is to recover damages for wrongful death of intestate; the second, to recover damages for pain and suffering sustained by intestate during thirty one days between date of her injury and date of her death; and the third, to recover for expenses incurred for medical and hospital attention during said time between date of her injury and date of her death.

Defendant, George W. Sharpe, moved to strike "all the so-called second cause of action" and "all the so-called third cause of action", and corresponding prayers for relief, as "irrelevant and redundant" and "prejudicial and harmful to this defendant", and also for that it appears upon the face of the complaint that plaintiff's intestate died as a result of the injuries alleged and that plaintiff is suing for damages for wrongful death; and hence may not maintain the so-called second and third causes of action for that they do not survive the plaintiff's intestate, and for that upon the allegations in the alleged first cause of action plaintiff's sole and exclusive remedy is an action for wrongful death.

When the cause came on for hearing in Superior Court, upon the foregoing motion of defendant, George W. Sharpe, --the motion being by agreement treated as a demurrer to, as well as a motion to strike, the second and third causes of action, the court sustained the demurrer and allowed the motion to strike, and entered order in accordance with such ruling.

Plaintiff appeals therefrom to Supreme Court and assigns error.

McDougle, Ervin & Fairley, of Charlotte, for plaintiff-appellant.

Goebel Porter and Frank H. Kennedy, both of Charlotte, for defendant-appellee.

WINBORNE, Justice.

This appeal presents for decision this basic question: Where a person is injured by the negligence of another, and, after time has elapsed, dies as a result of such injuries, does a cause of action for consequential damages sustained by the injured person between the date of the injury and the date of his death survive to the personal representative of such deceased person?

The answer to this question depends on the legal effect the 1915 amendment, P. L. 1915, Chapter 38, had upon the survival statutes, then Sections 156 and 157 of The Revisal of 1905, now G. S. § 28-172 and G.S. § 28-175, considered in connection with the wrongful death statutes G.S. § 28-173 and G.S. § 28-174.

While the Circuit Court of Appeals, Fourth Circuit, in the case of James Baird Co. v. Boyd, 4 Cir., 41 F.2d 578, in a similar case to that stated above, has given an affirmative answer, and while in this Court in the case of Fuquay v. A. & W. R. Co., 199 N.C. 499, 155 S.E. 167, there is obiter dicta of similar import, the question, in the light of the existing statutes, has not been the subject of decision by this Court.

It is appropriate, therefore, to review the history of the statutes involved.

At common law a person injured by the negligence of another had a right of action to recover consequential damages. But at common law such right of action did not survive the death of the injured person, that is, it died with the person; and if the injured person died as a result of the wrongful act of another, there was at common law no right of action for such death. And so much of the common law as has not been repealed or abrogated by statute is in full force and effect in this jurisdiction. G.S. § 4-1. Hence, if the right of action for recovery of damages for wrongful injury, whether resulting in death or not, survives the death of the injured person, it must do so purely by statutory power. In order, therefore, to provide a remedy for death caused by wrongful act the General Assembly of this State in 1854 passed the first act, patterned after the Lord Campbell's Act, 9 and 10 Victoria, to give a right of action in certain cases where death was by neglect, default or wrongful act. Laws of 1854-5, Chapter 39. And later the General Assembly, at its 1868-9 session, enacted the survival statutes and a redraft of the wrongful death stat-utes, as parts of the same act, entitled "An act concerning the settlement of the estates of deceased persons", relating more particularly to the "general powers and duties of executors, administrators and collectors, and actions by and against them". P. L. 1868-9, Chapter 113, sub-chapter VII.

Sections 63 and 64 of this act of 1868-9 related specifically to survival of rights of action. Section 63, which was entitled "Rights in action survive to and against personal representative", read as follows: "Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor or against such person, except as hereinafter provided, shall survive to and against the executor, administrator or collector of his estate". This Section became in almost identical words Section 1490 of The Code of 1883, and has remained unchanged, and been brought forward in subsequent codifications as Revisal Section 156, C.S. § 159 and now as G.S. § 28-172. Section 64, which was entitled "Exceptions: Rights which die with the persons", read as follows: "The following rights in action do not survive", among others "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". This quoted portion of the Section almost verbatim became subsection (2) of Section 1491 of the Code of 1883, and then Revisal subsection 2 of Section 157. Thus it is seen that Section 63 provided for survival of "all demands whatsoever, and rights to prosecute or defend any action" existing in favor of a person who has died, and Section 64 enumerated the rights of action which were excepted from the all-inclusive provisions of Section 63. And the General Assembly of 1915 amended this subsection (2) of Section 157 of the Revisal, by striking from the enumerated exceptions the clause "or other injuries to the person, where such injury does not cause the death of the injured party." P.L. 1915, Chapter 38. As so amended this subsection was made to relate only to "causes of action for false imprisonment and assault and battery", and later became C.S. § 162 (2) and is now G.S. § 28-175 (2).

On the other hand, Sections 70, 71 and 72 of the 1868-9 act related specifically to actions for wrongful death. Section 70, which was entitled "Action for wrongful act or neglect causing death", read as follows: "Whenever 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 within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although...