Curlee v. Duke Power Co.

OlabksoN, J. We see no error in tbe ruling of tbe court below sustaining tbe demurrer. C. S., 160, is as follows: “When tbe death of a person is caused by a wrongful act, neglect or default of another, such as would, if tbe injured party had lived, have entitled him to an action for damages therefor, the 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 tbe executor, administrator or collector of the decedent; and tbis notwithstanding tbe death, and although tbe wrongful act, neglect or default, causing tbe death, amounts in law to a felony. Tbe amount recovered in such action is not liable to be applied as assets, in tbe payment of debts or legacies, but shall be disposed of as provided in tbis chapter for tbe distribution of personal property in case of intestacy. In all actions brought under tbis section tbe dying declarations of the deceased as to tbe cause of bis death shall bo admissible in evidence in like manner and under tbe same rules, as dying declarations of the deceased in criminal actions for homicide are now received in evidence.” Public Laws, 1933, chap. 113, amends tbis section by allowing burial expenses. Tbe General Assembly, tbe legislative branch of tbe government, enacts tbe law subject to constitutional limitations. It is our sole duty to construe tbe law as written. Tbe law fixes one year in which an action can be brought for death by wrongful act, neglect or default of another. At common law a civil action could not be brought for tbe wrongful death of a human being. In 1846 an act was passed by tbe English Parliament known as Lord Campbell’s Act (9 and 10 Yict. C., 93), *647 which made such action permissible. The above statute in this State is patterned after the Lord Campbell Act. In Neely v. Minus, 196 N. C., 345 (347), it is said: “Our decisions are to the effect that the provisions of law that a suit for wrongful death must be brought within one year, is a condition annexed and must be ‘proved by the plaintiff to make out a cause of action, and is not required to be pleaded as a statute of limitation.” A construction of this act, by this Court citing numerous authorities, is exhaustively set forth in Tieffenbrun v. Flannery, 198 N. C., 397 (404), it is there said: “All statutes of limitations are essentially time clocks, and while C. S., 160, has been construed as a condition annexed to the cause of action, it is also a time limit to the procedure. At all events, it is legislative declaration of the policy of this State, providing-in express and mandatory language that no action for wrongful death shall be asserted in the courts of this State after the expiration of one year from the time of death.” The decisions of this State are to the effect that this provision requiring suit to be brought within one year after the death must be strictly complied with. No explanation as to why the action was not brought within such time can avail. The fact that no administrator was appointed does not vary the rule. Taylor v. Iron Co., 94 N. C., 525 (526) ; Best v. Kinston, 106 N. C., 205. The allegations in plaintiff’s complaint we do not think sufficient to sustain an action under C. S., 160. The action, to say the least, is novel and we cannot stretch the statute to give plaintiff a cause of action under the facts set forth in the complaint. The statute requires the action “to be brought within one year after such death.” In the present case it is some six years, and the charge of conspiracy as alleged in the complaint we do not think sufficient to toll or broaden the statute. It must be borne in mind that this is an action brought by plaintiff, under C. S., 160. Taylor v. Iron Co., supra, a case written by Merrimon, J., is decisive of this controversy. Speaking to the subject in that case, at p. 526-7, it is said: “This is not strictly a statute of limitation. It gives a right of action that would not otherwise exist, and the action to enforce it, must be brought within one year after the death of the testator or intestate, else the right of action will be lost. It must be accepted in all respects as the statute gives it. "Why the action was not brought within the time does not appear, but any explanation in that respect would be unavailing, as there is no saving clause as to- the time ivithin which the action must be begun.” (Italics ours.) For the reasons given, the judgment of the court below is Affirmed.