Peacock, In re, 307

• Decision Date: 06 May 1964
• Docket Number: No. 307,307
• Citation: 136 S.E.2d 91,261 N.C. 749
• Court: North Carolina Supreme Court
• Parties: In the Matter of John S. PEACOCK, Administrator of the Estate of Leslie Warren, Jr., Deceased.

Page 91

136 S.E.2d 91

261 N.C. 749

In the Matter of John S. PEACOCK, Administrator of the

Estate of Leslie Warren, Jr., Deceased.

No. 307

Supreme Court of North Carolina.

May 6, 1964

John S. Peacock, Goldsboro, Admr. of Estate of Leslie Warren, Jr., Scott B. Berkeley, Dees, Dees & Smith, Goldsboro, for respondent appellants.

Hugh Dortch, Henson P. Barnes, Goldsboro, for respondent appellees.

DENNY, Chief Justice.

In this jurisdiction, where a person is injured by the negligence of another, lives for a period of time and thereafter dies as a result of the injuries, his personal representative may recover (1) as an asset of the estate, damages sustained by the injured person during his lifetime, including hospital and medical expenses, and (2) for the benefit of the next of kin, the pecuniary injury resulting from death, the amounts recoverable being determinable upon separate issues. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R.2d 333. However, damages resulting from pain and suffering and for hospital and medical expenses consequent to wrongful injury, relate to the same cause of action and should be submitted upon a single issue of damages. Hoke v. Atlantic Greyhound Corp., supra.

The administrator in his petition states that had he been forced to bring an action he would have sued to recover consequential damages proximately caused by the personal injuries sustained by Leslie Warren, Jr., and in proof thereof would have offered evidence that the hospital and medical services rendered were necessary in an effort to save the life of his intestate and were reasonably worth the amounts claimed.

Moreover, G.S. § 44-49 in pertinent part provides: '* * * [T]here is hereby created a lien upon any sums recovered as damages for personal injury in any civil action in this State, the said lien in favor of any person or corporation to whom the person so recovering, or the person in whose behalf the recovery has been made, may be indebted for drugs, medical supplies, and medical services rendered by any physician, dentist, trained nurse, or hospitalization, or hospital attention ans/or services rendered in connection with the injury in compensation for which the said damages have been recovered. Where damages are recovered for and in behalf of minors or persons non compos mentis, such liens shall attach to the sum recovered as fully and effectively as if the said person were sui juris.'

The foregoing statute further requires that claimant shall file claim with the clerk of the court in which said civil action is instituted within 30 days after the institution of such action. However, in the instant case, no action was ever instituted. Therefore, the claimants never had an opportunity to perfect a lien under the provisions of the statute.

There was no provision in our wrongful death statute, G.S. § 28-173, for payment of hospital and medical expenses out of such recovery until the statute was amended by Chapter 1136 of the 1959 Session Laws of North Carolina. The statute, as amended, authorizes payment for such expenses not exceeding $500.00 out of such recovery. Therefore, in a case where an action has been brought for wrongful death and the jury has awarded an amount for such death, the limitation fixed in the statute for payment of hospital and medical expenses would control. However, the factual situation before us on this record is not such a case. We think there is more indication on this record that the compromise settlement included consequential damages, hospital and medical expenses, than there is that it was for wrongful death.

We concede that we have found no case in this jurisdiction dealing with the allocation of funds received in settlement of two existing causes of action by the payment of a single sum. Several cases from other jurisdictions have been found, primarily Surrogate Court cases from New York. The New York wrongful death statute, as amended, now provides for recovery of the medical expenses in a wrongful death action. Laws of New York, 1935, Chapter 224, Decedent Estate Law, McKinney's Consol.Laws, c. 13, § 132.

In In re Bruno's Estate, 36 Misc.2d 909, 233 N.Y.S.2d 913, there was a lien for $1,612.00 for medical expenses against the personal injuries recovery. The Court said: 'The court finds that the total amount of the proposed settement is fair and reasonable, but that the administrator has improperly allocated the proceeds between the personal injuries action and the death action. The second objection of each objectant is sustained. In view of the very advanced age of the decedent, her lack of earning capacity, the lack of dependence upon her by her statutory distributees, the extent of her injuries and the damages resulting therefrom, the court holds that $5,000 should be allocated to the personal injuries action and $1,500 to the death action. ...