Webb v. . Eggleston , 228 N.C. 574 ( 1948 )

SEAWELL, J., dissenting. Civil action to recover damages for wrongful death.

On 25 July 1945 an oil truck belonging to defendant Eggleston and being operated by defendant Williams, collided with the rear end of a truck belonging to and being operated by plaintiff's intestate. As a result, plaintiff's intestate was killed.

On 9 July 1946 plaintiff instituted this action. Summons and complaint were duly served on defendants 10 July 1946.

At the February Term, 1947, defendants demurred to the complaint for that it fails to state a cause of action. The demurrer was sustained and plaintiff was allowed time "in which to plead over by way of amendment to the complaint." Plaintiff did not appeal. Instead, she, on 22 February 1947, filed an "amendment to complaint," setting forth in detail the alleged acts of negligence on the part of the defendants.

On 26 February 1947 defendants demurred for that (1) the amended complaint fails to allege any fact constituting negligence on the part of the defendants; (2) the original complaint failed to state a cause of action and the amendment thereto was filed more than one year after the death of plaintiff's intestate, which fact appears of record and on the face of the complaint; and (3) there is no allegation in the original complaint or in the amendment thereto that this action was instituted within one year of the death of plaintiff's intestate.

At the June Term, 1947, Frizzelle, J., overruled the demurrer and defendants excepted.

The cause came on for hearing at the September-October Term. At the conclusion of the evidence for plaintiff, defendants moved to dismiss as in case of nonsuit. The motion was overruled and defendants excepted. The evidence offered by plaintiff tends to establish negligence but fails to show that this action was instituted within one year of the death of her intestate. The issues submitted were answered in favor of plaintiff. From judgment on the verdict defendants appealed. The defendants bring forward on this appeal their exception to the order of the court, entered at the June Term, 1947, overruling their demurrer to the amended complaint. Hence the merit of that exception, as well as the exception to the refusal of the court below to dismiss as in case of nonsuit, is presented for consideration.

The right to maintain an action for damages for wrongful death did not exist at common law. It was created by Chap. 39, Laws 1854-55, now codified as G.S. 28-173. Hoke v. Greyhound Corp., 226 N.C. 332,38 S.E.2d 105; White v. Charlotte, 212 N.C. 539, 193 S.E. 738;McGuire v. Lumber Co., 190 N.C. 806, 131 S.E. 274; Craig v. LumberCo., 189 N.C. 137, 126 S.E. 312.

The right rests entirely upon this Act and must be asserted in conformity therewith. Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216;Hall v. R. R., 149 N.C. 108; Hinnant v. Power Co., 189 N.C. 120,126 S.E. 307; Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857; Brown v.R. R., 202 N.C. 256, 162 S.E. 613; Whitehead Anderson, Inc., v.Branch, 220 N.C. 507, 17 S.E.2d 637; Wilson v. Massagee, 224 N.C. 705,32 S.E.2d 335.

The personal representative of a deceased person whose death was caused by the wrongful or negligent act of another is granted the right to maintain an action for damages "to be brought within one year after such death." This requirement that the action must be instituted within one year is an integral part of the right in the nature of a condition precedent. The right exists only during the twelve months next after death, at the end of which, if no action has been instituted, it ceases to exist.Gulledge v. R. R., 148 N.C. 567; Trull v. R. R., 151 N.C. 545,66 S.E. 586; Neely v. Minus, 196 N.C. 345, 145 S.E. 771; Tieffenbrun v.Flannery, supra; McGuire v. Lumber Co., supra, and cited cases; Curlee v.Power Co., 205 N.C. 644, 172 S.E. 329. The lapse of the statutory time not only bars the remedy but destroys the liability.

Hence the timely institution of the action must be shown in evidence at the hearing. Gulledge v. R. R., supra; Bennett v. R. R., 159 N.C. 345,74 S.E. 883; Hatch v. R. R., 183 N.C. 617, 112 S.E. 529; Hanie v.Penland, 193 N.C. 800, 138 S.E. 165; Neely v. Minus, supra; Mathis v.Mfg. Co., 204 N.C. 434, 168 S.E. 515.

An action is begun by the issuance of summons. But there must be a complaint filed in which a cause of action is stated. And we have consistently held that where an amendment to a complaint or an amended complaint introduces a cause of action or new matter not stated in the original complaint, it will have the same force and effect as if the amendment were a new and independent suit. Capps v. R. R., 183 N.C. 181,111 S.E. 533, and cited cases.

Of course a complaint filed in apt time under an order extending the time for filing the same as provided by statute relates back to the date of the summons. But such is not the case here. When the cause was called for hearing and after the pleadings had been read, the defendants interposed a demurrer ore tenus. The demurrer was sustained and there was no appeal. Thereupon the ruling that the complaint failed to state a cause of action became the law of the case. Thereafter the plaintiff was not entitled to maintain her action on the original complaint. She was compelled to rely on the complaint as amended and the date of its filing, under the rule stated, for the purpose of applying the provisions of G.S. 28-173, was the date the action was instituted.

A failure to amend after judgment sustaining the demurrer would have worked a dismissal. G.S., 1-131.

Applying this principle to a fact situation on all fours with the case at bar, Devin, J., speaking for the Court in George v. R. R., 210 N.C. 58,185 S.E. 431, says: "It follows, therefore, that an amendment to the complaint, if it be good and available, would relegate the plaintiff to the position of having thereby for the first time stated a cause of action against the demurring defendants; and since it was not filed until August, 1935, nearly three years after the death of the intestate, plaintiff's right of action under the amended complaint cannot be maintained." See alsoCapps v. R. R., supra.

The fact that the amended complaint stating for the first time the cause of action now sought to be maintained was filed more than one year after the death of plaintiff's intestate may be taken advantage of by demurrer. Capps v. R. R., supra; Davis v. R. R., 200 N.C. 345,157 S.E. 11; George v. R. R., supra; Taylor v. Iron Co., 94 N.C. 525.

It follows that defendants' demurrer to the complaint as amended should have been sustained. Failing in that, defendants were, in the trial below, entitled to judgment as in case of nonsuit.

The situation here presented is unfortunate for the plaintiff. Even so, for us to undertake to give her relief against the positive facts appearing of record would necessitate a complete shift of position, not only as to the George and similar cases, but also as to a long line of decisions holding that the date of the introduction of new matter in a complaint is the date of the institution of the action for the purpose of determining the bar of a pleaded statute of limitations. For surely, if that rule does not apply in a case where time is of the essence of the cause of action and the right to recover, irrespective of a plea, it should not apply to a mere statute of limitations which relates only to the remedy and is not available to the defendant unless specifically pleaded.

The judgment below must be

Reversed.