Sharpe v. Pugh, 523

• Decision Date: 20 June 1967
• Docket Number: No. 523,523
• Citation: 270 N.C. 598,155 S.E.2d 108
• Court: North Carolina Supreme Court
• Parties: Homer M. SHARPE, Administrator of the Estate of Brenda Adeline Sharpe v. Dr. V. Watson PUGH.

Page 108

155 S.E.2d 108

270 N.C. 598

Homer M. SHARPE, Administrator of the Estate of Brenda Adeline Sharpe v. Dr. V. Watson PUGH.

No. 523.

Supreme Court of North Carolina.

June 20, 1967.

Boyce, Lake & Burns, Raleigh, for plaintiff appellant.

Manning, Fulton & Skinner and Maupin, Taylor & Ellis, Raleigh, for defendant appellee.

BOBBITT, Justice.

We consider first whether the court erred in striking Paragraph XVII, quoted in the statement of facts, and the portion of the prayer relating to recovery of damages for pain and suffering.

Simultaneously with the issuance of summons, plaintiff applied for and obtained an extension of time for filing his complaint, as authorized by G.S. § 1--121. His application stated that 'the nature and purpose' of his action was '(t)o recover damages from the defendant for the wrongful death of the plaintiff's intestate, which wrongful death was caused by the negligence of the defendant in the care and treatment of plaintiff's intestate.' It stated further that additional time was necessary to enable plaintiff 'to interview and examine various medical experts to determine the exact condition of the plaintiff's intestate and the nature of the treatment that the plaintiff's intestate received prior to her death.'

When he filed his complaint, plaintiff incorporated therein, in addition to allegations appropriate in a complaint in a wrongful death action, allegations pertinent to an action to recover damages on account of the pain and suffering of his intestate from January 17, 1964, until her death. Defendant set forth as grounds for his motion that plaintiff's said application stated the action was to recover damages for the Wrongful death of his intestate; that pain and suffering are not elements of damage in an action for wrongful death; and that the reading to the jury of the allegations relating to pain and suffering would be prejudicial to defendant.

If, as alleged, Brenda was injured and later died as a result of defendant's actionable negligence, her administrator has two causes of action against defendant, namely, (1) a cause of action to recover, as assets of Brenda's estate, damages on account of her pain and suffering; and (2) a cause of action to recover, for the benefit of her next of kin, damages on account of the pecuniary loss resulting from her death. 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; In re Peacock, 261 N.C. 749, 136 S.E.2d 91. While the basis for each is the same wrongful act, the causes of action are separate and distinct. The parties are the same. However, each action must be determined on separate issues. Hinson v. Dawson, supra; In re Peacock, supra. 'When separate causes of action are united in the same complaint they must be separately stated.' 3 Strong, N.C. Index, Pleadings § 3. If not separately stated, it would seem that the complaint would be demurrable for misjoinder of causes of action. Monroe v. Dietenhoffer, 264 N.C. 538, 541, 142 S.E.2d 135, 137; 1 McIntosh, N.C. Pract. & Proc. § 1188 (2d ed., 1964 Supp.) Defendant does not demur for misjoinder of causes of action. The basis of his objection is that the statement in plaintiff's application for extension of time to file his complaint as to 'the nature and purpose' of his action Restricted and Limited plaintiff to the filing of a complaint to recover damages for the alleged wrongful death of his intestate. When due consideration is given the fact that the alleged actionable negligence of defendant constitutes the basis of each of the two causes of action set forth in the complaint, defendant's contention is untenable.

'The intent of the statute (G.S. § 1--121) was to require the plaintiff to alert the defendant by giving preliminary notice of the nature of the claim and the purpose of the suit, and that the ultimate factual averments would follow in a complaint later to be filed.' Roberts v. Coca-Cola Bottling Co., 256 N.C. 434, 124 S.E.2d 105. The statement as to 'the nature and purpose' of the action set forth in the application for extension of time to file complaint would seem sufficient to alert defendant that plaintiff's action was to recover damages on account of actionable negligence resulting in Brenda's injury and death. We perceive no reasonable ground to believe that defendant was taken by surprise because Brenda's administrator asserted a separate claim for personal injuries and a separate claim for wrongful death.

It is noted that plaintiff's cause of action for personal injuries is based solely on Brenda's pain and suffering from January 17, 1964, until her death; and that all of this period is within three years of the date on which the complaint was filed, to wit, August 31, 1966. G.S. § 1--52(5); Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 105 S.E.2d 282.

The conclusion reached is that the motion to strike Paragraph XVII of the complaint was in effect a demurrer to plaintiff's alleged cause of action to recover damages on account of personal injuries sustained by his intestate; and that the court's order in effect sustained the demurrer and dismissed That action. Under these circumstances, plaintiff was entitled as a matter of right to an immediate appeal. G.S. § 1--277; Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554. For the reasons stated, the court erred in striking Paragraph XVII and the portion of the prayer related to recovery of damages for pain and suffering; and this portion of the court's order is reversed.

The other portion of the court's order involves different and unrelated questions.

The portion of Paragraph VII to which defendant's motion is directed refers to the incident of June 18, 1963, and is as follows: '(T)hat at said time the plaintiff's intestate was a child two years and two months old and the parents of said child were unskilled in medical matters and unfamiliar with drugs, their uses, and their properties, and particularly with chloromycetin; that at said time the defendant failed to warn the plaintiff's intestate or her parents, as it was his duty to do, that taking said drug was dangerous or that it might produce dangerous side effects, including aplastic anemia.' The portion of Paragraph IX to which defendant's motion is directed refers to the incident of October 30, 1963, and contains substantially the same allegations as those in the portion of Paragraph VII quoted above. In Paragraph XVI, subsection (e), plaintiff alleged that defendant 'negligently failed to warn the parents of plaintiff's intestate that the drug, chloromycetin, was dangerous and that such drug might cause plaintiff's intestate to develop aplastic anemia and to get such parents' consent before administering said drug to plaintiff's intestate.'

Plaintiff contends an appeal lies immediately to the portion of the court's order striking from the complaint the portions thereof referred to in the preceding paragraph of this opinion. To support this contention he cites Nationwide Mutual Insurance Co. v. Canada Dry Bottling Co., 268 N.C. 503, 151 S.E.2d 14. The rule for which this decision stands is stated, with supporting citations, in 1 Strong, N.C. Index 2d, Appeal and Error § 6, pp. 119--120, as follows: '(W)hen an order is entered allowing a motion to strike In its entirety a further answer or defense, or an order is entered allowing a motion to strike An entire cause of action set up in a pleading, the order amounts to the granting of a demurrer, and is immediately appealable.' (Our i...