Hood v. Am. Tel. & Tel. Co

• Decision Date: 23 April 1913
• Citation: 77 S.E. 1096,162 N.C. 70
• Court: North Carolina Supreme Court
• Parties: HOOD. v. AMERICAN TELEPHONE & TELEGRAPH CO.

77 S.E. 1096

162 N.C. 70

HOOD.

v.AMERICAN TELEPHONE & TELEGRAPH CO.

Supreme Court of North Carolina.

April 23, 1913.

1, Death (§§ 11, 31^*) — Death of Wife — Right of Action.

The only right of action for wrongful death is given by Revisal 1905, § 59, and there only to the personal representative of the deceased; and a husband, not the personal representative of his wrongfully killed wife, cannot recover for her death.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 10, 15, 35, 37-46, 48; Dec. Dig. §§ 11, 31.*]

2. Trespass (§ 40*)—Death—Pleading—Demurrer.

The fact that, in a complaint charging a forcible trespass on the possession of plaintiff and his wife, the husband sought to recover damages for the death of his wife, for which he had no right to sue, did not render the complaint open to a demurrer upon the ground that it did not state a cause of action.

[Ed. Note.—For other cases, see Trespass, Cent. Dig. §§ 80-88; Dec. Dig. § 40.*]

Appeal from Superior Court, Caswell County; Allen, Judge.

Action by J. H. Hood against the American Telephone & Telegraph Company. Judgment for defendant, and plaintiff appeals. Reversed.

Justice & Broadhurst, of Greensboro, and P. W. Glidewell, of Reidsville, for appellant.

Wilson & Ferguson, of Greensboro, for appellee.

BROWN, J. [1] The plaintiff and his wife are alleged in the complaint to have been in possession of the house and some land which was their home, and it is alleged that the defendant, through its agents and employes, after being forbidden by the plaintiff and his wife, and without regard to the resistance or rights of the plaintiff and his wife, trespassed upon this land, and, at the time of trespass, offered the plaintiff and his wife indignities by demonstrations and by force and violence. It is alleged in paragraph 8 of the complaint that the trespass and wrongful conduct of the defendant was willful and wanton and was accompanied by acts of oppression, and that the plaintiff is entitled to recover from the defendant actual and punitive damages. It is true, that as an element of damage and in aggravation thereof, the plaintiff seeks to recover damages for the death of his wife, averring that it was bronght about by the tortious conduct of defendant's servants while acting for the defendant These allegations should be eliminated from the complaint as the plaintiff cannot recover damages by way of aggravation or otherwise for his wife's death. At common law a civil action does not lie for an injury resulting in death. To recover for such injuries, the statute, known as Lord Campbell's Act, was enacted by the English Parliament, 9 & 10 Victoria, and has been ingrafted into our law. Revisal, § 59. Under the statute, the only person who can sue is the...