Long v. Coble , 11 N.C. App. 624 ( 1971 )

182 S.E.2d 234 (1971) 11 N.C. App. 624

William Perry LONG, Administrator of the Estate of Leonard Carson Long
v.
George Nelson COBLE, Jr. and James Boykin.

No. 7113SC242.

Court of Appeals of North Carolina.

July 14, 1971. Certiorari Denied September 7, 1971.

Teague, Johnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, Raleigh, and D. Jack Hooks, Whiteville, for plaintiff appellant.

Marshall, Williams, Gorham & Brawley, by Lonnie B. Williams, Wilmington, for defendant appellees.

Certiorari Denied by Supreme Court September 7, 1971.

MALLARD, Chief Judge.

Plaintiff contends that the trial judge erred in allowing defendants' "plea in bar" and dismissing the action.

When this case was heard in November of 1970, it was subject to the provisions of G.S. § 1A-1, Rule 6 of the General Rules of Practice for the Superior and District Courts, Supplemental to the Rules of Civil Procedure adopted by the Supreme Court on 14 May 1970 to be effective 1 July 1970, which requires that all motions, written or oral, shall state the rule number or numbers under which the movant is proceeding. In this case neither plaintiff nor defendants complied with the provisions of this rule.

Chapter 1A of the General Statutes containing the Rules of Civil Procedure became effective and applicable to proceedings pending on 1 January 1970. Wickes Corp. v. Hodge, 7 N.C.App. 529, 172 S.E. 2d 890 (1970). The case at bar was pending on 1 January 1970, and the motion to amend and "plea in bar" were acted upon in November 1970. Therefore, the Rules of Civil Procedure, which became effective 1 January 1970, are applicable. Gragg v. Burns, 9 N.C.App. 240, 175 S.E.2d 774 (1970).

The authority to maintain an action to recover damages for wrongful death in North Carolina is statutory. Broadfoot v. Everett, 270 N.C. 429, 154 S. E.2d 522 (1967). G.S. § 28-173 requires that the action be brought by the executor, administrator or collector of the decedent. Under G.S. § 97-10.2(d), there is a proviso making the personal representative of a decedent a party plaintiff or defendant if he should refuse to cooperate with an employer in bringing the action under G.S. § 97-10.2(c) [which has been amended by Session Laws 1971, ch. 171, effective 1 July 1971]. The action for wrongful death must be brought within two years after the date of the death of the decedent. G.S. § 1-53. The personal representative of a decedent, as such, has no beneficial interest in a recovery and is therefore not the real party in interest. Broadfoot v. Everett, supra. The amount recovered is not a general asset of the estate, but the personal representative shall dispose of it as provided in G.S. § 28-173 and the Intestate Succession Act. G.S. § 29-13 provides that "(a)ll the estate of a person dying intestate shall descend and be distributed, subject to the payment of costs of administration and other lawful claims against the estate, and subject to the payment by the recipient of State inheritance taxes, as provided in this chapter." (Our italics.) Under the provisions of G.S. § 97-10.2, the amounts paid thereunder by an employer and the employer's insurance carrier as compensation or other benefits to a decedent under the Workmen's Compensation Act for disability, disfigurement, or death caused under circumstances creating a liability in some person other than the employer to pay damages therefor, constitute a lien on the amount recovered in a wrongful death action; and this is a lawful claim against the estate.

G.S. § 97-10.2 was not enacted to enable a third party tort-feasor to defeat a lawful claim. It was enacted to protect the employee, employer, and the employer's workmen's compensation carrier. This interpretation of the purpose of the act is supported by the provisions of G.S. 97-10.2(h).

When the complaint is construed liberally as is required by the provisions of G.S. § 1A-1, Rule 8, we think it constitutes a valid claim for relief. See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

G.S. § 1A-1, Rule 17(a), reads as follows:

"(a) Real party in interest.—Every claim shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the State so provides, an action for the use or benefit of another shall be brought in the name of the State of North Carolina. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." (Our italics.)

Both the court and the defendants' counsel were notified by letter on 1 May 1968 that C. Woodrow Teague, who was counsel for plaintiff's intestate's employer and its subrogated workmen's compensation insurance carrier, was appearing as counsel of record. When counsel for the employer and its insurance carrier thus participated in the action as counsel for the plaintiff, we hold that this was a ratification of the commencement of the action within a reasonable time after the "plea in bar" had been interposed by the defendants.

We are unable to ascertain from the record whether in entering the judgment the judge was acting under G.S. § 1A-1, Rule 12, on a preliminary motion for judgment on the pleadings or under G.S. § 1A-1, Rule 56, upon a motion for summary judgment. In order to arrive at the conclusion reached, it is clearly inferred in the judgment that consideration was given to an oral statement of one of the attorneys for the plaintiff which was a matter outside the pleadings. When matters outside the pleadings are presented and not excluded by the court on a motion for judgment on the pleadings, the motion, by the express provisions of G.S. § 1A-1, Rule 12(c), shall be treated as one for summary judgment under G.S. § 1A-1, Rule 56. The record in this case is devoid of any notice of a motion for summary judgment served on the plaintiff. Under the provisions of G.S. § 1A-1, Rule 56, it is required that the motion for summary judgment shall be served at least 10 days before the time fixed for the hearing. See Ketner v. Rouzer, 11 N.C.App. 483, 182 S. E.2d 21 (filed 23 June 1971).

We hold that under the factual circumstances of this case and the applicable law, it was error for the trial judge to sustain the "plea in bar" and dismiss the action. See also Taylor v. Hunt, 245 N.C. 212, 95 S.E.2d 589 (1956); Halladay v. Verschoor, 381 F.2d 100 (8 Cir. 1967); E. Brooke Matlack, Inc. v. Walrath, D.C., 24 F.R.D. 263.

We do not deem it necessary to discuss plaintiff's other contentions.

The judgment dismissing the action is reversed.

Reversed.

CAMPBELL and HEDRICK, JJ., concur.