Journigan v. Little River Ice Co.

• Decision Date: 02 February 1951
• Docket Number: No. 450,450
• Citation: 233 N.C. 180,63 S.E.2d 183
• Parties: JOURNIGAN, v. LITTLE RIVER ICE CO.
• Court: North Carolina Supreme Court

Page 183

63 S.E.2d 183

233 N.C. 180

JOURNIGAN, v. LITTLE RIVER ICE CO.

No. 450

Supreme Court of North Carolina.

Feb. 2, 1951

Bickett & Banks, Raleigh, for plaintiff, appellant, and plaintiffs, appellees.

A. J. Fletcher and F. T. Dupree, Jr., Raleigh, for defendant, appellant, appellee.

STACY, Chief Justice.

There separate questions are presented for decision in the appeals herein.

First. Plaintiff's Appeal in No. C-6256--Alice Journigan Case:

In the face of the admission that Alice Journigan has not in fact qualified as administratrix of Genie M. Journigan's estate and that no personal representative has ever been appointed to administer thereon, it is difficult to perceive how Alice Journigan finds any ground upon which to stand as an appellant. She denominates herself on appeal as 'The plaintiff', but there is no such plaintiff as 'Alice Journigan, administratrix of Genie M. Journigan, deceased', and she may not prosecute the action in her individual capacity. Howell v. Board of Com'rs, 121 N.C. 362, 28 S.E. 362; Hood v. American Tel. Co., 162 N.C. 70, 77 S.E. 1096. 'Under the statute, the only person who can sue is the personal representative of the deceased'. Howell v. Com'rs, supra; Hall v. Southern R. R. Co., 149 N.C. 108, 62 S.E. 899; Brown v. Southern R. R. Co., 202 N.C. 256, 162 S.E. 613; 74 A.L.R. 1273; Whitehead & Anderson, Inc., v. Branch, 220 N.C. 507, 17 S.E.2d 637; McCoy v. Atlantic Coast Line R. R. Co., 229 N.C. 57, 47 S.E.2d 532.

Indeed, where one sues as administrator, upon denial of his right to recover, he may be required to produce on the trial his letters of administration as evidence of his title. Kesler v. Roseman, 44 N.C. 389.

If and when Alice Journigan does in fact qualify as administratrix of her husband's estate, will be time enough to hear her as such representative. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697; Snipes v. Estates Administration, Inc., 223 N.C. 777, 28 S.E.2d 495; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284.

On the record as it now appears, there was no error in dismissing her action.

Second. Defendant's Appeal in No. C-6254--Horace Journigan's Case.

The principal question for decision in this case is whether the plaintiff's evidence taken in its most favorable light, survives the demurrer, carries the case to the jury and suffices to sustain the judgment for plaintiff.

The plaintiff's evidence is in sharp conflict with that of the defendant in respect of the speed of the two vehicles, especially as it relates to the speed of the Journigan car. The plaintiff's witnesses place the speed of the truck at 30 miles an hour and that of the car at 30 or 35 miles an hour. Defendant's witnesses, on the other hand, testified that the truck was traveling approximately 15 or 20 miles an hour, 'not over 25 to 30' miles an hour before the collision, and had stopped or was not going over five miles an hour at the moment of impact, and that the Journigan car was running between 70 and 90 miles an hour, which caused it to skid on the slippery road when the driver applied his brakes.

On demurrer to the evidence or motion for judgment as in case of nonsuit we take the plaintiff's evidence as true and reject the defendant's evidence in conflict therewith. Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327.

The fact the impact occurred slightly over the center line and on the western side, which was to the plaintiff's left, is not controlling or conclusive on the issue of contributory negligence. It is the position of plaintiff that the truck looming up over the hill on its left side of the road and speeding up in order to get around the parked cars before returning to its right side of the road, forced the driver of the Journigan car to apply his brakes and thus produced the collision.

The trial court properly overruled the demurrer to the evidence and submitted the case to the jury. Williams v. Kirkman, 232 N.C. 609, 61 S.E.2d 706; Howard v. Bell, 232 N.C. 611, 62 S.E.2d 323.

We find no error in No. C-6254--Horace Journigan's Case.

Third. Defendant's Appeal in No. C-6255--Doris May Journigan's Case:

This case stands on a parity with No. C-6254--Horace Journigan's Case, so far as the question of nonsuit is concerned. What has just been said in that case applies equally here.

There is a bit of evidence in this case, however, which requires some additional and separate consideration.

Over objection, the plaintiff was allowed to testify that her husband, Milton Journigan, had just come out of the military service and the length of time he had been in the service; that they had a child, two years old, at the time of his death; that she lost the homeplace to the mortgage people after his death, and that she paid his hospital and doctors' bills and burial expenses amounting to $655.00. Motion to strike; overruled; exception.

Under the pertinent decisions, it would seem that this evidence was incompetent on the measure of damages. McCoy v. Atlantic Coast Line R. R. Co., 229 N.C. 57, 47 S.E.2d 532.

It is provided by G.S. § 28-174 that in an action for wrongful death the...