Tieffenbrun v. Flannery

• Decision Date: 26 February 1930
• Docket Number: 405.
• Parties: 198 N.C. 397, 68 A.L.R. 210 v. FLANNERY. TIEFFENBRUN
• Court: North Carolina Supreme Court

151 S.E. 857

198 N.C. 397, 68 A.L.R. 210

TIEFFENBRUN v. FLANNERY.

No. 405.

Supreme Court of North Carolina

February 26, 1930

Appeal from Superior Court, Guilford County; Walter E. Moore, Judge.

Action by Katherine R. Tieffenbrun, widow of James H. Tieffenbrun against J. P. Flannery. From a judgment of dismissal plaintiff appeals. Affirmed.

Statutes of limitations govern cause of action in particular forum wherein asserted.

The plaintiff is a citizen and resident of the state of Missouri and is the widow of James H. Tieffenbrun, and is also administratrix of his estate under appointment by the probate court of Duncan county, Mo.

On August 30, 1925, in the city of Miami, state of Florida, the said James H. Tieffenbrun was struck by an automobile owned and operated by the defendant, who is a resident of the county of Guilford, N.C. As a result of the injury so received, Tieffenbrun died in Florida on August 30, 1925. On August 29, 1927, the plaintiff instituted this suit in Guilford county, N. C., against the defendant for the recovery of damages for the wrongful death of said Tieffenbrun. The plaintiff is the wife of said deceased, and alleges that the death of her husband was occasioned and brought about by the negligence of defendant in driving and operating his automobile in violation of certain statutes of Florida, regulating the operation of motor vehicles, which statutes were introduced in evidence at the trial.

The defendant filed an answer denying the allegations of the complaint and alleging that the action could not be maintained for that:

(1) The widow of said deceased could not maintain an action for wrongful death in the courts of North Carolina by virtue of the dissimilarity of the pertinent statutes of North Carolina and Florida.

(2) The suit was brought more than one year after the death of said deceased and could not be maintained in the courts of this state by virtue of the applicability of C. S. § 160.

The following judgment was rendered:

"This cause coming on to be heard and being heard by the Hon. Walter E. Moore, Judge Presiding at the March Civil Term, 1929, of the Superior Court of Guilford County, and a jury, and the jury having been empannelled, the pleadings read, the summons introduced in evidence by the plaintiff, and counsel for plaintiff and defendant having agreed and admitted in open court that the statutory laws of Florida as set out in the complaint are correctly set out therein, and furthermore, that the statute of limitations of the State of Florida applicable to actions for wrongful death is not contained in the statute creating such right of action, and that it is not a condition of such action, but is a general statute of limitations contained in a separate statute, to-wit, in the Revised General Statutes of Florida for 1920, § 2939, subsection 6, which reads as follows: 'Within Two Years--An action by another than the State upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment; An action arising upon account of an act causing a wrongful death.' That the said James H. Tieffenbrun, deceased, died on August 30th, 1925. Upon said pleadings, evidence, admissions and agreements, counsel for defendant thereupon made a motion to dismiss said action, for that the same is barred by Consolidated Statutes, Section 160, and that the plaintiff is not the proper party to maintain said action:

"Thereupon, after hearing and considering the argument of counsel for plaintiff and counsel for the defendant, the contention of counsel for plaintiff being that the limit of time within which this action can be commenced is contained in C. S. § 445 and the contention of counsel for defendant that it is contained in C. S. § 160, the Court finds the following facts:

"(1) That this action was instituted for the purpose of recovering damages on account of the wrongful death of James H. Tieffenbrun in the City of Miami, State of Florida, which death occurred on the 30th day of August, 1925;

"(2) That a summons was issued in this action by the Clerk of the Superior Court of Guilford County on the 29th day of August, 1927, directed to the sheriff of Guilford County, and that the said summons was served on the defendant on the said 29th day of August, 1927;

"(3) That this action was instituted by the plaintiff individually as the widow of James H. Tieffenbrun;

"(4) That the statute of limitations of the State of Florida above set out applicable to actions for wrongful death is not applicable to this action, the same being a general statute of limitations of two years not contained in the wrongful death statute of the State of Florida set out in the complaint herein, and not being a condition of such action.

"From the foregoing, the Court being of opinion that this action is barred by the time limit contained in C. S. § 160, and furthermore that this action cannot be maintained by the plaintiff individually:

"It is thereupon considered, ordered and adjudged, that the defendant's motion to dismiss this action be, and the same is hereby granted, and that the said action be, and the same is hereby dismissed, and that the plaintiff be taxed with the cost of said action."

From judgment rendered the plaintiff appealed.

Frazier & Frazier, of Greensboro, and Randolph & Randolph, of St. Joseph, Mo., for appellant.

R. M. Robinson, of Greensboro, for appellee.

BROGDEN J.

Can an action for wrongful death be maintained in the courts of this state upon a cause of action created by the law of a foreign state for a killing occurring in said foreign state more than one year from the time the action is instituted in this state?

C. S. § 160, was originally enacted by chapter 39, Public Laws of 1854, and appeared in the Revised Code of 1854 in chapter 1, sections 8, 9, 10, and 11 thereof. The original verbiage of the act has been changed from time to time and amendments have been added thereto, but these changes have no bearing upon the merits of the question at issue.

The statute has been construed in many decisions of this court, notably: Taylor v. Iron Co., 94 N.C. 525; Best v. Kinston, 106 N.C. 205, 10 S.E. 997; Hartness v. Pharr, 133 N.C. 566, 45 S.E. 901, 98 Am. St. Rep. 725; Lassiter v. Norfolk & C. R. R., 136 N.C. 89, 48 S.E. 642, 1 Ann. Cas. 456; Hall v. Southern R. Co., 146 N.C. 345, 59 S.E. 879; Gulledge v. R. R., 147 N.C. 234, 60 S.E. 1134, 125 Am. St. Rep. 544; Gulledge v. R. R., 148 N.C. 567, 62 S.E. 732; Hall v. R. R., 149 N.C. 108, 62 S.E. 899; Trull v. R. R., 151 N.C. 545, 66 S.E. 586; Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399; Abernathy v. R. R., 159 N.C. 340, 74 S.E. 890; Bennett v. R. R., 159 N.C. 346, 74 S.E. 883; Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216, 42 L. R. A. (N. S.) 725; Hood v. Telegraph Co., 162 N.C. 70, 77 S.E. 1096; Mitchell v. Talley, 182 N.C. 683, 109 S.E. 882; Capps v. R. R., 183 N.C. 181, 111 S.E. 533; Hatch v. R. R., 183 N.C. 617, 112 S.E. 529; Tonkins v. Cooper, 187 N.C. 570, 122 S.E. 294; Craig v. Lumber Co., 189 N.C. 137, 126 S.E. 312; McGuire v. Lumber Co., 190 N.C. 806, 131 S.E. 274; Hanes v. Utilities Co., 191 N.C. 13, 131 S.E. 402; Avery v. Brantley, 191 N.C. 396, 131 S.E. 721; Holloway v. Moser, 193 N.C. 185, 136 S.E. 375, 50 A. L. R. 262; Hanie v. Penland, 193 N.C. 800, 138 S.E. 165; Brooks v. Lumber Co., 194 N.C. 141, 138 S.E. 532; Hines v. Foundation, 196 N.C. 322, 145 S.E. 612; Neely v. Minus, 196 N.C. 345, 145 S.E. 771.

These decisions have settled the following aspects of wrongful death in this jurisdiction:

(1) No suit can be maintained upon a cause of action arising in this state by any person except an executor or administrator duly appointed by the local court. Hall v. R. R., supra.

(2) If a wife sues in her individual capacity, and after the expiration of one year seeks to amend by adding the word "administratrix" after her name, the action then becomes a new and independent suit, and the court has no power to permit such amendment. However, if the suit is brought under the Employers' Liability Act, such an amendment made after two years does not constitute a new action. Missouri, Kansas & Texas R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134; Union Pac. R. Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983.

(3) The law of a foreign state where the cause of action arose pleaded in our courts by way of amendment does not constitute a new cause of action. Lassiter v. R. R., supra.

(4) If an action brought within a year is nonsuited, a new action may be brought within one year after such nonsuit. Trull v. R. R., supra.

(5) Attachment will lie in actions for wrongful death. Mitchell v. Talley, supra.

(6) The action does not abate by reason of the death of defendant, Tonkins v. Cooper, supra.

(7) A wife cannot recover damages for mental anguish and loss of consortium by reason of the wrongful killing of her husband. Craig v. Lumber Co., supra; Hinnant v. Power Co., 189 N.C. 120, 126 S.E. 307, 37 A. L. R. 889. See, also, McDaniel v. Trent Mills, 197 N.C. 342, 148 S.E. 440.

(8) The father of a minor child is entitled to one-half of recovery, although divorced from the mother who brings the suit as administratrix of such minor. Avery v. Brantley, supra.

(9) The deposition of an injured party duly and properly taken in a suit for damages for personal injury is competent in an action for the wrongful death of such party. Hartis v. Electric R. R., 162 N.C. 236, 78 S.E. 164, Ann. Cas. 1915A, 811.

(10) If there is a discontinuance, a new summons issued after one year constitutes a new action, which is not maintainable. McGuire v. Lumber Co., supra.

(11) The fact that a defendant is a nonresident does not excuse...