Mathis v. Camp Mfg. Co

• Decision Date: 29 March 1933
• Docket Number: No. 292,292
• Citation: 168 S.E. 515,204 N. C. 434
• Court: North Carolina Supreme Court
• Parties: MATHIS . v. CAMP MFG. CO.

168 S.E. 515

204 N. C. 434

MATHIS .

v.CAMP MFG. CO.

No. 292

Supreme Court of North Carolina.

March 29, 1933

.

.

Appeal from Superior Court, Pender County; Devin, Judge.

Action by Hettie Mathis, administratrix of Watson Mathis, deceased, against the Camp Manufacturing Company. From a judgment dismissing the action, plaintiff appeals.

Aflirmed.

Watson Mathis, husband of Hettie Mathis, died intestate on October 2, 1930, while in the employ of the defendant as skidder foreman. Soon after his death, Hettie Mathis brought a proceeding before the North Carolina Industrial Commission entitled, "Hettie Mathis, dependent wife of Watson Mathis, deceased, plaintiff, v. Camp Manufacturing Company, Employer, and Consolidated Underwriters, Carrier." From an order of the Industrial Commission an appeal was taken to the superior court, and at the December term, 1931, of Gates county, Judge Frizzelle made an order that the proceeding he remanded to the Industrial Commission for the purpose of being dismissed, on the ground that the deceased at the time of his death was a railroad employee, and was not bound by the Workmen's Compensation Act. From this order there was no appeal. The proceeding was dismissed.

On June 15, 1931, Hettie Mathis qualified as administratrix of the estate of her deceased husband, and on August 20, 1932, brought this action in the superior court of Pender county to recover damages for the wrongful death of her husband. The defendant filed a plea in abatement on the ground that the action cannot be maintained. Judge Devin sustained the plea and dismissed the action. The plaintiff excepted and appealed.

George R. Ward, of Wallace, for appellant.

J. J. Best, of Burgaw, and Herbert McClammy, of Wilmington, for appellee.

ADAMS, Justice.

Any person who causes the wrongful death of another is liable to an action for damages to be brought by the personal representative of the deceased within one year after the death. C. S. § 160; Davis v. R. R., 200 N. C. 345, 157 S. E. 11. The provision as to time is not a statute of limitation, but a condition affecting the cause of action. Gulledge v. Railroad, 14S N. C. 567, 62 S. E. 732. It follows, not only that the plaintiff must bring his action within one year after the death; he must at the trial make proof of the fact. Hanie v. Penland, 193 N. C. 800, 138 S. E. 165; Hatch v. R. R., 183 N. C. 617, 112 S. E. 529; Bennett v. R. R., 159 N. C. 345, 74 S. E. 883. The plaintiff complies with this provision of the statute if he begins his action within the prescribed time, takes a nonsuit, and institutes a new action within one year after nonsuit. C. S. § 415; Trull v. Railroad, 151 N. C. 545, 66 S. E. 586; Brooks v. Lumber Co., 194 N. C. 141, 138 S. E. 532. The second action would thus relate back to the beginning of the first. Quelch v. Futch, 174 N. C. 395, 93 S. E. 899. Compare Citizens' Saving & Loan Co. v. Warren, 204 N. C. 50, 167 S. E. 494.

The plaintiff's intestate died October 2, 1930; the proceeding first instituted was dismissed in December, 1931; the plaintiff brought this suit August 20, 1932. The ac tion is therefore tolled unless it can be construed as a continuation after nonsuit of the proceedings begun before the Industrial Commission. This is the position on which the plaintiff relies; but we are of opinion that it cannot be maintained.

Only for the purpose of the argument we may accede to the proposition that the judgment dismissing the proceedings before the Industrial Commission did not necessarily prevent the plaintiff from beginning anew. Pescud v. Hawkins, 71 N. C. 299. Another fact, ' however, must be kept in mind. Section 415 applies only to actions instituted in the regular course of civil procedure and not to collateral or incidental proceedings. "This appears from the legal meaning of the terms...