Colyar v. Atlantic States Motor Lines, Inc.

ERVIN, J., dissenting. This is an action for wrongful death. The date of the death of plaintiff's intestate is alleged in the complaint and the summons shows that the action was instituted less than one year from such date, but the complaint did not allege that the action was brought within one year of the death of plaintiff's intestate. Upon the call of the case for trial, the plaintiff moved to amend, so as to allege the action was brought within one year from the death of plaintiff's intestate. Motion denied. Exception. Whereupon, the defendant demurred ore tenus, on the ground that the complaint did not allege that this was an action for wrongful death and that it was instituted within one year after such death. The demurrer was sustained on authority of Wilson v. Chastain,230 N.C. 390, 53 S.E.2d 290. *Page 319 The plaintiff excepted to the ruling and appeals, assigning error. The right to maintain an action for damages for wrongful death was created by statute, now codified as G.S. 28-173. No such action existed at common law. And it has been uniformly held that an action for wrongful death must be instituted within one year of such death, otherwise no cause of action exists. McCoy v. R. R., 229 N.C. 57,47 S.E.2d 532; Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700; George v. R. R., 210 N.C. 58, 185 S.E. 431; Curlee v. Power Co., 205 N.C. 644,172 S.E. 329; Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 68 A.L.R. 210; Davis v. R. R., 200 N.C. 345, 157 S.E. 11; Best v. Town of Kinston, 106 N.C. 205, 10 S.E. 997; Taylor v. Iron Co., 94 N.C. 525. The statutory requirement that an action for wrongful death must be instituted within one year from the date of such death, is a condition annexed to the right to maintain the action, and not an element of the cause of action. As this is a condition annexed to the right, and not a limitation, compliance therewith must be shown at the hearing, but need not be pleaded. Mathis v. Mfg. Co., 204 N.C. 434, 168 S.E. 515; Tieffenbrun v. Flannery, supra; Neely v. Minus, 196 N.C. 345, 145 S.E. 771; Hanie v. Penland, 193 N.C. 800, 138 S.E. 165; McGuire v. Lumber Co.,190 N.C. 806, 131 S.E. 274; Hatch v. R. R., 183 N.C. 617, 112 S.E. 529, Capps v. R. R., 183 N.C. 181, 111 S.E. 533; Bennett v. R. R., 159 N.C. 345,74 S.E. 883; Trull v. R. R., 151 N.C. 545, 66 S.E. 586; Gulledge v. R. R., 147 N.C. 234, 60 S.E. 1134. The plaintiff complied with the statute when she brought her suit within the prescribed time. Mathis v. Mfg. Co., supra. However, she must prove such compliance at the trial by introducing evidence "showing that the action was brought within the statutory period." Tieffenbrun v. Flannery, supra. This is ordinarily done by introducing the summons in evidence. And in order to meet the requirement of the statute in this respect, it is not necessary to allege in a complaint for damages for wrongful death that "the action is brought within one year of the intestate's death." Our wrongful death statute was enacted nearly one hundred years ago, and this Court has never held or intimated that such an allegation is necessary except in the recent case of Wilson v. Chastain, supra, in which case the question was not presented. It follows, therefore, that the decision in Wilson v. Chastain is modified in so far as it appears to be in conflict with this decision. The ruling of his Honor in sustaining the demurrer interposed by the defendant is Reversed. *Page 320