Journigan v. Little River Ice Co., 450

• Citation: 233 N.C. 180, 63 S.E.2d 183
• Case Date: February 02, 1951
• Court: United States State Supreme Court of North Carolina

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', [233 N.C. 183] 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

Page 186

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...