Tonkins v. . Cooper , 187 N.C. 570 ( 1924 )

Stacy, J.

Tbis is an. action to recover damages for an alleged negligent injury and wrongful killing of plaintiff’s intestate. Suit was instituted 28 April, 1922, within thirty days after tbe alleged wrongful death, and tbe complaint was duly filed on 12 May, 1922. Defendant filed answer, 18 May, 1922, denying all tbe material allegations of tbe complaint. In January, 1924, tbe defendant died. At tbe February Term, 1924, of Guilford Superior Court, plaintiff suggested tbe death of tbe defendant and moved that bis administratrix be made a party defendant. Counsel for tbe administratrix of tbe defendant resisted tbe motion, upon tbe ground tbe action abated on tbe death of tbe defendant, and they therefore moved that it be dismissed. Tbis motion' was allowed and judgment entered accordingly. Plaintiff excepted and appealed.

There was error in bolding that tbe action abated on tbe death of tbe defendant, and in dismissing tbe suit. O. S., 160, provides that when tbe death of a person is caused by tbe wrongful act, neglect, or default of another, such as would, if tbe injured party bad lived, have entitled him to an action for damages therefor, tbe person or corporation that would have been so liable, “and bis or their executors, administrators, collectors, or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator, or collector of tbe decedent,” etc. Under the terms of this statute, suit may be brought against the executors, administrators, or collectors of the person negligently or wrongfully causing the death of plaintiff's intestate, where such person dies within one year after the wrongful death; and the fact that suit was brought within the year and while the alleged wrongdoer was living would not change the rule of law.

There is nothing in sections 159, 162, or 461 of the Consolidated Statutes which militates against this position.

Reversed.