Wilson v. Chastain

• Decision Date: 04 May 1949
• Docket Number: No. 521.,521.
• Citation: 53 S.E.2d 290,230 N.C. 390
• Parties: WILSON. v. CHASTAIN et al.
• Court: North Carolina Supreme Court

53 S.E.2d 290

230 N.C. 390

WILSON.

v.CHASTAIN et al.

No. 521.

Supreme Court of North Carolina.

May 4, 1949.

Appeal from Superior Court, Mecklenburg County; J. H. Clement, Judge.

Wrongful death action by H. L. Wilson, administrator of the estate of William N. Wilson, against J. N. Chastain, E. L. Torrence and the Rulane Gas Company, a corporation. From a judgment overruling the demurrer, the Rulane Gas Company appeals.

Affirmed.

Plaintiff sued defendants for damages for the death of his intestate upon a complaint alleging that such death, "which occurred on or about midnight of November 21-22, 1947, and which is less than one year next preceding the institution of this action, was due to, caused by, and followed as a direct and proximate result of the joint and concurrent negligence of the defendants and each of them" in specified particulars. Summons was issued and served November 22, 1948. Both the summons and the complaint bear stamped notations reading as follows: "Filed Nov. 22, 1948, at 2:35 P. M. J. Lester Wolfe, C. S. C." The defendant, Rulane Gas Company, demurred "to the complaint of the plaintiff for that it affirmatively appears upon the face of the complaint and the record that the action is one for wrongful death, which said action was not instituted within a year of the plaintiff's intestate's death." The court overruled the demurrer, and the defendant, Rulane Gas Company, appealed, assigning such ruling as error.

Henry E. Fisher and Walter K. Covington, both of Charlotte, for plaintiff-appellee.

Jones & Small, of Charlotte, for defendant Rulane Gas Co.

ERVIN, Justice.

When a personal representative sues for damages for the wrongful death of his decedent, he must allege and prove that his action is "brought within one year after such death." G.S. § 28-173. This is true because the statutory requirement that the suit must be commenced within that time is not a mere statute of limitations, but is a condition annexed to the cause of action itself. By this it is meant that the right given by the statute is one to sue within the specified period, and not thereafter. McCoy v. Atlantic Coast Line R. Co., 229 N.C. 57, 47 S.E.2d 532; George v. Atlanta & Charlotte Airline R. Co., 210 N.C. 58, 185 S.E. 431; Curlee v. Duke Power Co., 205 N.C. 644, 172 S.E. 329; Mathis v. Camp Manufacturing Co., 204 N.C. 434, 163 S.E. 515; Davis v. Norfolk-Southern R. Co., 200 N.C. 345, 157 S.E. 11; Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 68 A. L.R. 210; Neely v. Minus, 196 N.C. 345, 145 S.E. 771; Hanie v. Penland, 193 N.C. 800, 138 S.E. 165; McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274; Hatch v. Alamance R. Co., 183 N.C. 617, 112 S.E. 529; Bennett v. North Carolina R. Co., 159 N.C. 345, 74 S.E. 883; Gulledge v. Seaboard Air Line R. Co, 147 N.C. 234, 60 S.E. 1134, 125 Am. St. Rep. 544, rehearing denied 148 N.C. 567, 62 S.E. 732; Best v. Town of Kinston, 106 N.C. 205, 10 S.E. 997; Taylor v. Cranberry Iron & Coal Co, 94 N.C. 525.

A demurrer is "the formal mode of disputing the sufficiency in law-of the pleading to which it pertains." Conrad v. Board of Education, 190 N.C. 389, 130 S.E. 53; Manning v. Atlantic & Y. R. Co, 188 N.C. 648, 125 S.E. 555. The demurrer interposed by ...