McCoy v. Atlantic Coast Line R. Co.

• Decision Date: 05 May 1948
• Docket Number: 595.
• Parties: McCOY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

47 S.E.2d 532

229 N.C. 57

McCOY v. ATLANTIC COAST LINE R. CO.

No. 595.

Supreme Court of North Carolina

May 5, 1948

This action was brought under G.S. § 28-173 to recover for the injury and death of George W. McCoy through the alleged negligence of the defendant. The evidence of plaintiff discloses that the intestate, George W. McCoy, died around the 19th of August, 1943. At that time plaintiff, who sues here as administrator, a son of the deceased, was in the military service of the United States, in the 282 Engineers stationed in the New Georgia Islands. He was discharged from the army in December 1945, qualified as administrator on the 21st day of December 1945, and brought this action by issue of summons dated March 21, 1946. From plaintiff's evidence it also appears that there were other adult children of the intestate, and a number of other relatives, in the vicinage who might have qualified in administration of the estate.

On the trial evidence relating to the manner of the injury negligence of defendant, contributory negligence of the intestate, damages and other matters, was introduced by plaintiff and exceptions taken by defendant, which, in view of the rationale of the decision, it is not necessary to set out.

Evidence in behalf of the defense was also introduced.

At the conclusion of the plaintiff's evidence and again at the conclusion of all the evidence the defendant demurred and moved for judgment of nonsuit. The motions were overruled and defendant excepted.

The evidence was submitted to the jury on issues of negligence contributor negligence and damages; and each was answered in favor of the plaintiff. Damages were awarded in the sum of $2,000.

Thereupon the plaintiff tendered a judgment in accordance with the issues answered for the sum awarded.

The court declined to sign the tendered judgment but, finding that upon the submission of the issues the defendant and the plaintiff had agreed that in lieu of the submission of an issue respecting the military service of the plaintiff and relating to the number and character of the distributees in case of recovery, the judge might find the pertinent facts the trial judge thereafter found that Charles W. McCoy was in the military service of the United States at the time of the death of his father and continued therein until the 21st day of December 1945, when he was discharged; and, upon admission of counsel of plaintiff and defendant, found as a fact that there were three adult children of the said George W. McCoy at his death, two sons and one daughter, who were the only distributees entitled to share in the personal estate of the deceased; and being of the opinion that only those of the said distributees who had shown they were in military service and entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act were entitled to shares as distributees in the recovery, and it appearing that said Charles W. McCoy is the only one who has made such showing, reduced the recovery to his proportionate share, the same being $66.67, and costs of the action.

The defendant, having preserved its objections taken upon the trial by motion to set aside the verdict for errors committed, which was overruled, objected to the signing of the judgment, excepted and appealed.

The plaintiff, excepting to the reduction of the recovery as above noted, also appealed.

That assignment of error by defendant which is pertinent to this decision is directed to the overruling of its demurrer and motion for judgment of nonsuit made on the ground that plaintiff's action was not brought within one year following the alleged wrongful death as required in G.S. § 28-173.

W.L. Farmer, Cicero P. Yow and Rountree & Rountree, all of Wilmington, for plaintiff, appellee, and as appellant.

Poisson, Campbell & Marshall and Wm. B. Campbell, all of Wilmington, for defendant, appellant.

SEAWELL Justice.

Our version of "Lord Campbell's Act," G.S. § 28-173, creates a cause of action for the recovery of damages for wrongful death to be brought within one year after such death by the "executor, administrator or collector of the decedent." It is a newly created right of action: Bolick v. Southern R. Co., 138 N.C. 370, 50 S.E. 689; and the provision that the action must be brought in one year after the death is held not to be a simple statute of limitations on the institution of actions, but that it is a condition annexed to the cause of action; Trull v. Seaboard Air Line Railroad Co., 151 N.C. 545, 66 S.E. 586; Curlee v. Duke Power Co., 205 N.C. 644, 647, 172 S.E. 329; the provision as to time is to be strictly construed: Taylor v. Cranberry Iron & Coal Co., 94 N.C. 525; Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637; and the fact that no administrator was appointed is immaterial to its lapse: Best v. Kinston, 106 N.C. 205, 10 S.E. 997.

The personal representative alone can maintain the action: Hanes v. Southern Public Utilities Co., 191 N.C. 13, 16, 131 S.E. 402, only in his official capacity: Hall v. Southern R.R. Co., 146 N.C. 345, 348, 59 S.E. 879; and he sues in his own right and not en autre droit: Christian v. Atlantic & N.C.R.R. Co., 136 N.C. 321, 322, 48 S.E. 743, 68 L.R.A. 418, 1 Ann.Cas. 803.

The North Carolina law is materially different from that of most states in that distribution is made, not to designated classes, but in accordance with the canons of descent and distribution: Hines v. Foundation Co., 196 N.C. 322 145 S.E. 612; and the existence or nonexistence of possible distributees or beneficiaries is immaterial: Warner v....