Merchants Distributors, Inc. v. Hutchinson

193 S.E.2d 436 (1972) 16 N.C. App. 655

MERCHANTS DISTRIBUTORS, INC.
v.
John N. HUTCHINSON, Individually, and John N. Hutchinson, Administrator of the Estate of Mark S. Hutchinson, Deceased.
Ronnie Wayne LEWIS
v.
John N. HUTCHINSON, Individually, and John N. Hutchinson, Administrator of the Estate of Mark S. Hutchinson, Deceased.

No. 7225SC571.

Court of Appeals of North Carolina.

December 20, 1972.

Smathers, Ferrell & Farthing by Edwin G. Farthing and James C. Smathers, Hickory, for plaintiff appellants-appellees.

Frank & Lassiter by Jay F. Frank, Statesville, for defendant appellant.

Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellee.

MALLARD, Chief Judge.

APPEAL OF DEFENDANT ADMINISTRATOR

Defendant John N. Hutchinson, administrator of the estate of Mark S. Hutchinson in Tennessee, assigns as error the dismissal of his counterclaim at the hearing on plaintiffs' motion to dismiss, pursuant to G.S. § 1A-1, Rule 12(b)(6).

In North Carolina, an administrator appointed by the court of another state may not maintain an action for wrongful death occurring in North Carolina. Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673 (1940), cert. denied, 312 U.S. 684, 61 S. Ct. 612, 85 L. Ed. 422; Hall v. R. R., 146 N.C. 345, 59 S.E. 879 (1907). However, the clerk of the superior court in the county in which personal service may be had upon the alleged tortfeasor has authority to appoint an ancillary administrator to sue for wrongful death, notwithstanding that deceased was a nonresident. 3 Strong, N. C. Index 2d, Executors and Administrators, § 3.

Therefore, the commencement of a wrongful death action by a foreign administrator in North Carolina will not operate to bar the running of the applicable two-year statute of limitations set forth in G.S. § 1-53, such action being a nullity and subject to dismissal. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761, 3 A.L.R. 3d 1225 (1963); Bennett v. R. R., 159 N.C. 345, 74 S.E. 883 (1911); Reid v. Smith, 5 N.C. App. 646, 169 S.E.2d 14 (1969).

"The right of action for wrongful death is purely statutory. It may be brought only `by the executor, administrator, or collector of the decedent.' G. S. 28-173. * * * If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed. * * *" Graves v. Welborn, supra. Compare McNamara v. Kerr-McGee Chemical Corp., 328 F. Supp. 1058 (E.D.N.C.1971); Annot., 3 A.L.R. 3d 1234 (1965).

An action may be dismissed for failure to state a claim upon which relief may be granted. G.S. § 1A-1, Rule 12(b)(6). The defendant administrator was not duly appointed in this state. As of the time of this appeal, no ancillary administrator had been properly joined in this action, although there had been one appointed in North Carolina. The collision sued upon occurred on 2 June 1969. The date of death of Mark S. Hutchinson is not specifically alleged in the pleadings. However, one of the defendant's witnesses testified that he went to the scene of the collision and that Mark S. Hutchinson did not have any pulse. Moreover, in the copy of the counterclaim which was attached to the Tennessee administrator's motion to amend, it is alleged that Mark was 16 years of age at the time of his death and John N. Hutchinson (the father) testified that Mark was born on July 1, 1952. Therefore, if he did not die immediately, he died before his seventeenth birthday which would have been on 1 July 1969. In plaintiff appellant's statement of case on appeal, it is stated that he was "killed in the collision"; therefore, we assume that Mark S. Hutchinson died on 2 June 1969, or at least before his seventeenth birthday.

In the counterclaim attached to the motion filed 3 November 1971 by John N. Hutchinson, the Tennessee administrator of the estate of Mark S. Hutchinson, it was alleged that Harold J. Bender, the ancillary administrator, should be made a party to the action and that this allegation be considered as a motion for that purpose. This allegation was apparently not treated as such a motion because no order appears in this record directing that the ancillary administrator be made a party to this action.

The asserted counterclaim by the Tennessee administrator was not filed until 30 November 1971, which was after the ancillary administrator for the estate of Mark S. Hutchinson had been appointed in North Carolina and more than two years from the date of death of Mark S. Hutchinson, deceased. We hold that the defendant, Tennessee administrator, may not maintain this wrongful death action in North Carolina. Under the circumstances of this case, the dismissal of the counterclaim of the Tennessee administrator for the wrongful death of the decedent pursuant to G.S. § 1A-1, Rule 12(b)(6) was proper. See Young v. Marshburn, 10 N. C.App. 729, 180 S.E.2d 43 (1971), cert. denied, 278 N.C. 703, 181 S.E.2d 603; Monfils v. Hazlewood, supra, and G.S. § 1-53.

Defendant, the Tennessee administrator, contends that Judge Grist erred in failing to allow him to amend his answer pursuant to G.S. § 1A-1, Rule 15(c) in order to assert a counterclaim for wrongful death which would relate back to defeat the bar of the statute of limitations. We do not agree. Assuming, but not deciding, that Rule 15(c) would permit the amendment of an answer to assert a counterclaim which has been barred by the statute of limitations [compare Stoner v. Terranella, 372 F.2d 89 (6th Cir. 1967); Butler v. Poffinberger, 49 F.R.D. 8 (D.C.1970)], nonetheless, we are of the opinion that Rule 15(c) is not applicable on the facts in this case because the proposed counterclaim for wrongful death was signed and filed by attorneys acting on behalf of a foreign administrator at a time when there was a duly appointed ancillary administrator in North Carolina, and after the Tennessee administrator had failed in his effort to have the Federal District Court take jurisdiction. The Tennessee administrator, instead of filing his counterclaim in the state court, instituted the action for wrongful death in the Federal District Court on 4 March 1971 which was after he was made a party defendant in this action and after summons in this action was served on him on 10 February 1971. The findings of fact by Judge Grist are supported by the evidence and indicate that the defendant, the Tennessee administrator, failed in his counterclaim to state a claim upon which relief could be granted in North Carolina, failed to show oversight, inadvertence, excusable neglect, or that justice required the requested amendment, and the judge properly concluded as a matter of law that the counterclaim must be dismissed. See G.S. § 1A-1, Rule 13(f). The order of Judge Grist dismissing the counterclaim of the defendant administrator is affirmed.

APPEAL OF PLAINTIFFS MERCHANTS DISTRIBUTORS, INC. and RONNIE WAYNE LEWIS

Plaintiffs set forth fifteen assignments of error in the record on appeal but have brought forward and argued in their brief only three. The remaining twelve assignments of error are deemed abandoned. Rule 28 of the Rules of Practice in the Court of Appeals.

Plaintiffs' assignments of error numbered 8 and 9 are directed to the charge of the court to the jury. While reviewing the evidence in the case, the judge stated that the evidence tended to show that defendant administrator ". . . appears in this case having been brought in as an individual as well as the administrator of the estate of Mark S. Hutchinson, his son who I think everyone would agree was the victim in the automobile and lost his life in it." The plaintiffs contend that the trial judge's use of the word "victim" in the charge was an expression of opinion prejudicial to their cause and violative of G.S. § 1A-1, Rule 51(a).

In support of their contention, plaintiffs cite People v. Williams, 17 Cal. 142 (1860). In that opinion the use of the word "victim" in the charge to the jury at the trial of a homicide was criticized by the appellate court.

In North Carolina, whether prejudice resulted from the trial judge's remarks is to be determined from the circumstances under which the remarks were made and the probable meaning of the language of the judge to the jury. State v. Byrd, 10 N.C.App. 56, 177 S.E.2d 738 (1970). We do not approve of the use of the word "victim" by the trial judge, but on the facts of this case, we are of the opinion that the use of the word "victim" was not an impermissible expression of opinion by the trial judge and did not amount to prejudicial error. In so doing, we note that in the context in which the word "victim" was used, it was obvious both to counsel for the plaintiffs and to the jury that the court was referring solely to the fact that Mark S. Hutchinson was the only person who was killed in the collision. Moreover, one of the definitions of the word "victim" in Webster's Third New International Dictionary (1968) is "someone who suffers death, loss, or injury in an undertaking of his own." Plaintiffs' assignment of error numbered 8 is overruled. See also, Barger v. State, 235 Md. 556, 202 A.2d 344, 9 A.L.R. 3d 926 (1964).

The plaintiffs also contend that the court erred in defining foreseeability in its instructions to the jury on proximate cause. We disagree. The court in its charge stated:

"The law is made for all of us and it recognizes that we all have our frailities (sic) and therefore, it does not require that we will be able to foresee what is going to happen, but it does require that we so conduct ourselves that we have due regard for the rights of our fellowmen and that we foresee what might reasonably be foreseen, although it does not require what is known as prevision.

The law only requires reasonable foresight and where the injury complained of is not reasonably foreseeable in the exercise of due care, the party whose conduct is under investigation is not answerable therefor. And I instruct you that reasonable care is that degree of care which a reasonably prudent person would exercise under like circumstances when charged with a like duty. Foreseeable damage is a requisite of proximate cause and proximate cause is a requisite for actionable negligence and actionable negligence is a requisite for recovery for any damage negligently inflicted. A proximate cause is also a cause from which a person of ordinary prudence could have reasonably foreseen that such a result or some similar injurious result was probable under the facts as they existed."

Plaintiffs argue that the judge committed error in using the foregoing words "due regard for the rights of our fellowmen." We reject this argument and hold that the court's charge, when construed as a whole, adequately stated the law as to foreseeability. A charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971). Plaintiffs' assignment of error numbered 9 is overruled.

Plaintiffs assign as error the action of the trial court in excluding from the evidence a portion of a deposition given by Arthur Larry Arnold who was a passenger in the 1965 Dodge truck at the time of the collision at issue. The portion of the deposition excluded reads as follows:

"Q. All right. Had he taken any kind of pep pill or anything to keep him awake?

A. I don't know.

Q. Did you customarily carry such in the truck?

A. Yes, we did.

Q. What did you carry?

A. They were pep pills, to stay awake pills.

Q. Were they the kind you can go to the corner drug store and buy or the kind that you slip around the corner and buy?

A. I really don't know.

Q. Who got them?

A. Mark got them for us.

Q. All right, and when you were taking these long trips, sometimes, you would take them, is that correct?

A. If it was necessary to take them, yes.

Q. All right, to keep you awake?

A. Yes, Sir."

Plaintiffs contend that the excluded portion of the deposition is relevant as bearing upon the issue of negligence. We do not agree. Although evidence concerning a person's physical condition which may cause that person to act in a given manner may be competent upon the issue of negligence [Rick v. Murphy, 251 N.C. 162, 110 S.E.2d 815 (1959)], the proffered evidence in the case at bar does not raise even a conjectural inference that the deceased was under the influence of any drug at the time of the collision, or at any other time, or that deceased's physical condition was anything other than normal at the time of the accident. We reject plaintiffs' contention that the excluded evidence establishes a habit or custom on the part of deceased. The portion of the deposition offered was irrelevant and too remote to be considered upon the issue of negligence in this case and was properly excluded. See State v. Stone, 240 N.C. 606, 83 S.E.2d 543 (1954). Plaintiffs' assignment of error numbered 3 is overruled.

We think the trial in the superior court was free from prejudicial error. In the appeal of plaintiffs and in the appeal of defendants, we find no error.

No error.

BROCK and BRITT, JJ., concur.