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Willis v. Duke Power Co.

Filed: August 21, 1979.


Appeal by plaintiff from Thornburg, Judge. Judgment entered 17 January 1978 in the Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 March 1979.

Morris, Chief Judge. Judges Clark and Arnold concur.


The threshold question for decision on this appeal is whether the action abated upon the death of Elizabeth Shelton Willis, mother of decedent, after commencement of the action but pending trial. The trial court, by granting defendant's motion for summary judgment "based on the grounds stated in the motion", held that it did. We do not agree.

Resolution of this question of first impression in this State requires consideration of the former wrongful death statute, cases interpreting that statute, and the new wrongful death statute.

No right of action for wrongful death existed at common law, and it has oft been said that it was cheaper to kill than to injure. By "The Fatal Accidents Act", 1846, 9 & 10 Victoria, c. 93, ยงยง 1-6, commonly known as Lord Campbell's Act, a right of action for wrongful death was brought into being. Section 1 of that statute provided:

"Whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued should be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."

This basic portion of LOrd Campbell's Act has now been adopted by every State. There are differences among the States in the method of measuring damages and distributing recovery. The basic portion of Lord Campbell's Act was adopted in North Carolina in 1868-69 and remains in almost identical verbiage in

present G.S. 28A-18-2(a). (The 1969 Legislature rewrote G.S. 28-174, the damages section of the wrongful death statute, and the 1973 Legislature combined G.S. 28-173 and G.S. 28-174 into one statute designated as G.S. 28A-18-2.)

Prior to the 1969 amendment, the statute (G.S. 28-173) provided that the amount recovered in such an action would not be applied as an asset of the estate to the payment of debts of the decedent, except for burial expenses of the deceased and reasonable hospital and medical expenses not exceeding $500, "but shall be disposed of as provided in the Intestate Succession Act." G.S. 28-174 provided for the recovery of "such damages as are a fair and just compensation for the pecuniary injury resulting from such death." That language remained unchanged from 1869 to 1969. The Court construed the language to mean that the jury was required to determine the amount of money decedent would have earned during the period the jury should find he would have lived, determine and deduct his ordinary living expenses, and then ascertain the present net worth of the accumulation of those net earnings. The resulting figure represented the pecuniary value of the life of the decedent to his estate. See Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49 (1952). The statute made no provision for punitive damages, nor did it allow for nominal damages if there was no pecuniary loss. Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793 (1958).

Under the former statute, it is very clear that the action did not abate upon the failure or absence of next of kin prior to judgment. See Note, Wrongful Death Damages in North Carolina, 14 N.C.L. Rev. 402, at 425. In Warner v. The Railroad Co., 94 N.C. 250 (1886), the trial court had indicated that plaintiff's complaint was defective because it failed to allege in a wrongful death action that decedent left surviving him next of kin and refused to allow plaintiff to amend. Plaintiff submitted to a nonsuit and appealed. In addressing this question, the Court noted that the statute required that damages were not simply to be "distributed", but " disposed of ', (id. at 257) and that it appeared that the purpose of the statute was to give the right of action for the recovery of damages for wrongful death without regard to who might become beneficiaries, excluding, of course, creditors and legatees. The Court regarded this view as strengthened by the fact that the North Carolina statute was different from the

majority of statutes in the United States in that the statutes in most states provided for a designated beneficiary or beneficiaries -- usually wife and children -- and the measure of damages generally was made to depend on who was designated to receive the proceeds of the action. The Court in holding it unnecessary to allege the survival of next of kin, said:

"We are unable to see anything in the terms or purpose of the statute, that warrants such interpretation of it as would exclude the University from taking the damages recovered in the absence of next-of-kin. The statute, (The Code, Sec. 1498), in broad and comprehensive terms, gives the action; Sec. 1499, prescribes in terms quite as comprehensive, that the damages recoverable shall be such 'as are a fair and just compensation for the pecuniary injury resulting from such death,' and Sec. 1500 prescribes that such damages shall not be applied as assets in the payment of debts or legacies, 'but shall be disposed of as provided in this chapter, for the distribution of personal property, in case of intestacy.' It is observable that the damages are not simply to be disposed of as provided in this chapter for the distribution of personal property, but as ' in case of intestacy.' These latter words are significant, as tending to show a definite purpose, to make a complete disposition in any case, of the damages. As we have seen, in case of intestacy, the personal property of the intestate is to be distributed, first, to the widow and children, or the legal representative of such child or children as may be dead; if there be none, the representative of children; then to the succeeding next-of-kin generally, and if the classes thus entitled, do not claim it in the way and within the time prescribed, it is just as certainly to be disposed of to the University.

It is said that the purpose of actions like this, is to provide for the widow and children of the intestate, and this is no doubt true, but it is likewise just as true and certain -- the provision is plain -- that their further purpose is to provide for the next succeeding next-of-kin, who, in many cases, have very little natural claim upon the intestate. The purpose of such actions reaches certainly beyond the claim of those who are first entitled to the benefit of the labor and efforts of the intestate. It seems to have been part of the purpose of the

statute giving the action and disposing of the damages recoverable in it, to give the latter to the University in case of the possible absence of next-of-kin. It has for a long period been the settled policy of the State, to dispose of unclaimed property in the hands of executors and administrators, to the University, and a like disposition is made of damages in actions like the present.

So, that in any case, the statute directs a disposition of the damages that may be recovered from the defendant in this action. It cannot, therefore, concern it to inquire who shall be entitled to take benefit of the same. It has no right or interest in that respect. Hence, it was not only not necessary, but it would have been improper, to allege in the complaint that there were next-of-kin of the intestate. Any issue raised in such respect, would have been beside the case, immaterial and improper." 94 N.C. at 259-60.

See also Wilson v. Massage, 224 N.C. 705, 32 S.E.2d 335 (1944); McCoy v. R.R., 229 N.C. 57, 47 S.E.2d 532 (1948); Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947); Abernethy v. Utica Mutual Insurance Company, 373 F.2d 565 (4th Cir. 1967).

The Court also noted that in some states, though not uniformly so held, where the statutes designated the persons to take, it might be quite in order to require an allegation in the complaint of the existence of such persons, "because, in the ...

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