Bolick v. Railroad , 138 N.C. 370 ( 1905 )

This was an action begun in May, 1903, for personal injuries sustained by plaintiff by reason of the alleged negligence of the defendant. The plaintiff died in April, 1904, and at May Term following, his administrator asked to be substituted as party plaintiff and allowed to prosecute the action, alleging that the personal injuries sued for caused the death of his intestate. The defendant moved the court that the action abate by reason of the death. This last motion was allowed, and the administrator appealed.

The action for personal injuries was maintainable at common law and abated upon the death of the plaintiff. The right of action for death caused by the wrongful neglect or default of another was first conferred by Lord Campbell's Act, 9 and 10 Victoria, which begins by expressly reciting that at common law action for such cause could not be maintained. With some variations that statute has been adopted in probably every State of the Union. It has been uniformly held that such statutes confer a new right of action which did not previously exist. 8 A. E. (2 Ed.), 858. In this State an action for death by wrongful act was first given by chapter 39, Laws 1854, which now, with some modifications, is The Code, secs. 1498, 1499, and 1500. The history of this legislation and summary of decisions is fully given in Killian v. R. R., 128 N.C. 261.

As the cause of action for the wrongful death could not accrue till the death, it could not be set up by an amendment to this action, which was instituted by the plaintiff himself. Gilliam v. Ins. Co., 121 N.C. 369;Powell v. Allen, 103 N.C. 46; Bynum v. Comrs., 101 N.C. 412.

It is equally clear that the cause of action for personal injuries abated upon the death of the plaintiff, though "the injury subsequently resulted in death." Killian v. R. R., supra. In Harper v. Comrs.,123 N.C. 118; Scarlett v. Norwood, 115 N.C. 286, (372) and Hannah v. R. R., 87 N.C. 361, it was held that a cause of action for a personal injury did not survive the death of the injured party, the Court in the latter case saying that Peebles v. R. R.,63 N.C. 238, did not apply since the adoption of The Code, sec. 1490. It is provided by section 1491: "The following rights in action do not survive. . . . 2. Causes of action for false imprisonment, assault and battery, or other injuries to the person, where such injury does not cause the death of the injured party." "Where such injury does not cause" means simply "unless such injury shall cause" the death of the injured party. The appellant argues that inasmuch as the expression "where such injury does not cause the death of the injured party," and death here resulted ultimately from such cause, that this action did not abate. But we are of opinion that such inference cannot be drawn and that the statute meant no more than that the action for personal injury could not be maintained after the death of the injured party unless the injury caused the death, in which case an action could be brought under section 1498. If an action could be maintained, notwithstanding the death, for the injuries resulting in death, there would be two actions for the death, one accruing to the administrator, the recovery wherein to be applied as general assets, and the other, also by the administrator, the recovery in which would be applied "not as assets," but would go in distribution to the next of kin. In the first case the death would be the proof, and the climax of the injuries sustained, and we should have two actions by the same party, the administrator, to recover upon substantially the same cause of action.

Nor do we see any reason why if the injured party die, from other causes, the action for personal injuries should abate (as is admitted), but if he ultimately die from the injuries it should not abate. We understand the words in Code, sec. 1491 (2), providing for the abatement of actions for injuries to the person "where such injuries do not (373) cause the death of the injured party," not as a provision by implication that such actions survive, but as a recognition that (under The Code, sec. 1498) in case of the death of the injured person from such injuries an action is now expressly given by statute. Such other action, counsel stated, has been brought and is now pending. In that action appropriate relief can be had.

The plaintiff relies upon Schlicting v. Wintgen, 25 Hun, 626, in which it was held: "It is no defense to an action to recover for the wrongful killing of the intestate that he had in his lifetime recovered a judgment against the same defendant for the personal injuries which resulted in his death." We think this was correctly held, for there the death was a cause of action accruing subsequent to the judgment; but when the death occurs pending an action for personal injuries, of which the death is the greatest, we think such cause is merged in the cause of action for the death, and that the only remedy, under our statute, is that given under section 1498, and that the pending action for the lesser injuries abates.

No error.

Cited: Whitehurst v. R. R., 160 N.C. 2; Broadnax v. Broadnax, ib., 433; Watts v. Vanderbilt, 167 N.C. 568; Renn v. R. R., 170 N.C. 150;Edwards v. Chemical Co., ib., 556, 557; Gurley v. Power Co., 172 N.C. 695;Dowell v. Raleigh, 173 N.C. 200.

(374)