Competitor Liaison Bureau of NASCAR, Inc. v. Blevins , 242 N.C. 282 ( 1955 )

87 S.E.2d 490 (1955) 242 N.C. 282

Competitor Liaison Bureau of NASCAR, Inc., National Association for Stock Car Auto Racing, Inc., James F. Chesnutt, Dixieland Speedways, Inc., and J. & W. Corporation, and William H. G. France,
v.
Rebecca J. BLEVINS, Vicky A. Blevins, minor, Rebecca M. Blevins, as Administratrix of the Estate of William W. Blevins, and Mrs. Elma Blevins.

No. 672.

Supreme Court of North Carolina.

May 25, 1955.

Long, Ridge, Harris & Walker, Graham, Tally, Tally & Brewer, Fayetteville, for plaintiffs appellants.

Rose & Sanford, L. Stacy Weaver, Jr., Fayetteville, for defendants appellees.

WINBORNE, Justice.

Appellants in their brief filed here state the following as the question involved on this appeal: "Do the release provisions of registration agreement executed by participant in stock car race prior to entering race event constitute a bar to claim for injury and death on account of alleged negligence of plaintiffs during course of race?" Patently as here presented this is a moot question. In the first place sufficient facts are not agreed to present a controversy cognizable under the Uniform Declaratory Judgment Act. It is not admitted that the death of William W. Blevins, participant in a stock car race, was the proximate result of negligence of any one.

This Court has held that the scope of the Uniform Declaratory Judgment Act, G.S. § 1-253 et seq., does not extend to the submission of a theoretical problem or a mere abstraction. Poore v. Poore, 201 N.C. 791, 161 S.E. 532; Carolina Power & Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56.

Again, while it is set forth in the record that the administratrix of Blevins has made and now makes demand for damages on account of his alleged wrongful death, there is no agreement or fact found in respect to the averments in defendants' answer to the effect that before plaintiffs filed their complaint in this action, the defendant administratrix here, as plaintiff, had filed an action in Superior Court of Cumberland County against all of the plaintiffs in this action, defendants there, except Nascar, demanding damages for the wrongful death of William W. Blevins,—alleging that his death was the sole and proximate result of certain negligent acts of defendants there. If such be true, an issue as to negligence of defendants in that action is necessarily involved. And the parties may not take time out in the prosecution of that action to ask this Court for an advisory opinion as to a question incidental to that action. See Redmond v. Farthing, 217 N.C. 678, 9 S.E.2d 405.

For reasons stated, this Court, ex mero motu, remands the cause for further proceedings as right requires, and justice demands.

Error and remanded.