Strauss v. City Of Wilmington

• Decision Date: 15 October 1901
• Citation: Strauss v. City Of Wilmington, 129 N.C. 99, 39 S.E. 772 (N.C. 1901)
• Parties: STRAUSS. v. CITY OF WILMINGTON.
• Court: North Carolina Supreme Court

39 S.E. 772

129 N.C. 99

STRAUSS.

v.CITY OF WILMINGTON.

Supreme Court of North Carolina.

Oct. 15, 1901.

JUDGMENT—FINDINGS—SUFFICIENCY— REVIEW.

1. Where, in an action for injuries sustained by plaintiff's testator, which it was alleged resulted in his death, the answer denied that the injury was caused by defendant's negligence, and also that it caused his death, a finding that decedent was "injured" by defendant's negligence will not sustain a judgment for plaintiff.

2. The insufficiency of the finding of fact to support the judgment is a defect on the face of the record which is presented for review, notwithstanding the insufficient issues submitted to the jury were agreed upon by the counsel, since the appeal itself is an exception to the judgment.

Appeal from superior court, New Hanover county; Hoke, Judge.

Action by Jessie R. Strauss, executrix, against the city of Wilmington. From a judgment in favor of plaintiff, defendant appeals. Reversed.

E. K. Bryan and Rountree & Carr, for appellant.

Bellamy & Bellamy and A. J. Marshall, for appellee.

CLARK, J. This is an action for damages for injuries sustained by plaintiff's testator, which it is alleged resulted some months later in his death. The answer denies that the injury was caused by the negligence of the defendant, and also that it caused his death. The issue thus raised has not been passed upon by the jury. The issue submitted and found affirmatively, "Was the plaintiff's testator injured by the negligence of the defendant?" does not find that such injury caused the death, but by implication, at least, finds that it did not If the injury caused the death, this action is maintainable by virtue of Code, § 1498, which changed the common law in such cases. Killian v. Railway Co.; 128 N. C. 261, 38 S. E. 873. If, however, nothing more appears than that the testator was injured by defendant, as found by the jury, and has since died, as appears by admission of administration, the action is not maintainable. Code, § 1491, subd. 2; Harper v. Commissioners, 123 N. C. 118, 31 S. E. 384. With that material allegation denied by the answer and not passed upon by the jury, no judgment can be entered. It is true that if all the points raised can be presented to the jury upon the issues submitted, they will be deemed sufficient; but such is not the case when, as here, the verdict is not a sufficient basis for a judgment Redmond v. Ohandley, 119 N. C. 575, 26 S. E. 255; Tucker v. Satterthwaite, 120 N. C. 118, 27 S....