Long v. Coble
Decision Date | 14 July 1971 |
Docket Number | No. 7113SC242,7113SC242 |
Citation | 182 S.E.2d 234,11 N.C.App. 624 |
Parties | William Perry LONG, Administrator of the Estate of Leonard Carson Long v. George Nelson COBLE, Jr. and James Boykin. |
Court | North Carolina Court of Appeals |
Teague, Johnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, Raleigh, and D. Jack Hooks, Whiteville, for plaintiff appellant.
Marshall, Williams, Gorham & Brawley, by Lonnie B. Williams, Wilmington, for defendant appellees.
Plaintiff contends that the trial judge erred in allowing defendants' 'plea in bar' and dismissing the action.
When this case was heard in November of 1970, it was subject to the provisions of G.S. § 1A--1, Rule 6 of the General Rules of Practice for the Superior and District Courts, Supplemental to the Rules of Civil Procedure adopted by the Supreme Court on 14 May 1970 to be effective 1 July 1970, which requires that all motions, written or oral, shall state the rule number or numbers under which the movant is proceeding. In this case neither plaintiff nor defendants complied with the provisions of this rule.
Chapter 1A of the General Statutes containing the Rules of Civil Procedure became effective and applicable to proceedings pending on 1 January 1970. Wickes Corp. v. Hodge, 7 N.C.App. 529, 172 S.E.2d 890 (1970). The case at bar was pending on 1 January 1970, and the motion to amend and 'plea in bar' were acted upon in November 1970. Therefore, the Rules of Civil Procedure, which became effective 1 January 1970, are applicable. Gragg v. Burns, 9 N.C.App. 240, 175 S.E.2d 774 (1970).
The authority to maintain an action to recover damages for wrongful death in North Carolina is statutory. Broadfoot v. Everett, 270 N.C. 429, 154 S.E.2d 522 (1967). G.S. § 28--173 requires that the action be brought by the executor, administrator or collector of the decedent. Under G.S. § 97--10.2(d), there is a proviso making the personal representative of a decedent a party plaintiff or defendant if he should refuse to cooperate with an employer in bringing the action under G.S. § 97--10.2(e) ( ). The action for wrongful death must be brought within two years after the deate of the death of the decedent. G.S. § 1--53. The personal representative of a decedent, as such, has no beneficial interest in a recovery and is therefore not the real party in interest. Broadfoot v. Everett, Supra. The amount recovered is not a general asset of the estate, but the personal representative shall dispose of it as provided in G.S. § 28--173 and the Intestate Succession Act. G.S. § 29--13 provides that '(a)ll the estate of a person dying intestate shall descend and be distributed, subject to the payment of costs of administration and Other lawful claims against the estate, and subject to the payment by the recipient of State inheritance taxes, as provided in this chapter.' (Our italics.) Under the provisions of G.S. § 97--10.2, the amounts paid thereunder by an employer and the employer's insurance carrier as compensation or other benefits to a decedent under the Workmen's Compensation Act for disability, disfigurement, or death caused under circumstances creating a liability in some person other than the employer to pay damages therefor, constitute a lien on the amount recovered in a wrongful death action; and this is a lawful claim against the estate.
G.S. § 97--10.2 was not enacted to enable a third party tort-feasor to defeat a lawful claim. It was enacted to protect the employee, employer, and the employer's workmen's compensation carrier. This interpretation of the purpose of the act is supported by the provisions of G.S. 97--10.2(h).
When the complaint is construed liberally as is required by the provisions of G.S. § 1A--1, Rule 8, we think it constitutes a valid claim for relief. See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).
G.S. § 1A--1, Rule 17(a), reads as follows:
(Our italics.)
Both the court and the defendants' counsel were notified by letter on 1 May 1968 that C. Woodrow Teague, who was counsel for plaintiff's intestate's employer and its subrogated workmen's compensation insurance carrier, was appearing as counsel of record. When counsel for the employer and its insurance...
To continue reading
Request your trial-
Smith v. Liberty Mut. Ins. Co.
...subject to lawsuit. Such an interpretation is clearly consistent with the language of the opinion. In the case of Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234 (1971), Judge Mallard states that § 97-10.2 "was enacted to protect the employee, employer, and the employer's workmen's compensa......
-
Udzinski v. Lovin
...of a decedent, as such, has no beneficial interest in a recovery and is therefore not the real party in interest. Long v. Coble, 11 N.C.App. 624, 628, 182 S.E.2d 234, 237, cert. denied, 279 N.C. 395, 183 S.E.2d 246 (1971). Therefore, plaintiff cannot personally recover some of the damages w......
-
Boston v. Davis
...to court that it would be bound by any decision in case); and (3) by participating in the legal proceedings, Long v. Coble, 11 N.C.App. 624, 629, 182 S.E.2d 234, 238 (holding that participationby counsel for real party in interest in legal proceedings was sufficient ratification), cert. den......
-
Conover v. Newton, 112
...a Rule 56 motion for summary judgment brings into effect the ten day procedural notice requirement of Rule 56(c), See Long v. Coble, 11 N.C.App. 624, 182 S.E.2d 234, Cert. denied 279 N.C. 395, 183 S.E.2d 246 (1971) and 5 Wright & Miller, Federal Practice and Procedure, § 1371, p. 704 and § ......