McCoy v. Atlantic Coast Line Railroad

Seawell, J. Our version of “Lord Campbell’s Act,” G. S., 28-173, creates a cause of action for the recovery of damages for wrongful death to be brought within one year after such death by the “executor, administrator or collector of the decedent.” It is a newly created right of action: Bolick v. R. R., 138 N. C., 370, 50 S. E., 689; and the provision that the action must be brought in one year after the death is held not to be a simple statute of limitations on the institution of actions, but that it is a condition annexed to the cause of action; Trull v. R. R., 151 N. C., 545, 66 S. E., 586; Curlee v. Duke Power Co., 205 N. C., 644, 647, 172 S. E., 329; the provision as to time is to be strictly construed: Taylor w. Cranberry Iron Co., 94 N. C., 525; Whitehead v. Branch, 220 N. C., 507, 17 S. E. (2d), 637; and the fact that no administrator was appointed is immaterial to its lapse : Best v. Kinston, 106 N. C., 205, 10 S. E., 997. The personal representative alone can maintain the action: Hanes v. So. Public Utilities Co., 191 N. C., 13, 16, 131 S. E., 402, only in his official capacity: Hall v. Southern R. R. Co., 146 N. C., 345, 348, 59 S. E., 879; and he sues in his own right and not en autre droit: Christian v. R. R., 136 N. C., 321, 322, 48 S. E., 743. The North Carolina law is materially different from that of most states in that distribution is made, not to designated classes, but in accordance with the canons of descent and distribution: Hines v. Foundation Co., 196 N. C., 322, 145 S. E., 612; and the existence or nonexistence of possible distributees or beneficiaries is immaterial: Warner v. Western N. C. R. R. Co., 94 N. C., 250, 255, 259, or not necessary to recovery; and evidence as to the number of children left is inadmissible: Kesler v. Smith, 66 N. C., 154. *60 We are called upon to decide whether, under the facts of this case, the plaintiff administrator can call to his aid the Soldiers’ and Sailors’ Civil Relief Act, Title 50, U.S.C.A., sec. 525, so as to legally justify the maintenance of this action, brought more than one year after the death, but within one year after the discharge of the soldier from military service. The pertinent provisions of the cited section of the Federal Act is as follows: “The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, nor shall any part of such period which occurs after the date of enactment of the Soldiers’ and Sailors’ Civil Relief Act Amendments of 1942 (Oct. 6, 1942) be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment.” The more familiar cases involving stay of proceedings against soldiers and sailors, and especially those which turn on the discretion of the trial court, of which Lightner v. Boone, 222 N. C., 205, 22 S. E. (2d), 426, 319 U. S., 561, 87 L. Ed., 1587, is pre-eminently an outstanding example, are of little aid to us in the instant case which is concerned with the right of a prospective plaintiff, or a petitioner, or at least an actor, under the cited statute. It is questionable whether the statute was intended to apply to probate proceedings and estates of decedents at all. See 42 Michigan Law Review, pp. 480, 482, et seq. But in deference to the liberality with which the Act must be construed, conceding that it may be so applied to qualified situations, we have only removed the outer shell of the Chinese egg laid upon our table. We may remove another by assuming, but not deciding, that the act affects not only ordinary statutes of limitation and those providing a condition precedent for their institution, but also those, like ours, where the period in which suit may be brought is affixed to the cause of action. Still, the phraseology, carefully chosen, marks the limit to which Congress thought it best to go. It seems to us that it was not the intention of the Act to hold up administration until one of many *61 eligible persons might administer; or, if such a person has administered and brought suit in his official capacity, that it should be regarded as a suit brought by the Sailor or Soldier designated in the Act in his individual right, merely because of his interest in a contingent recovery of damages in a suit brought in behalf of decedent’s estate, however it might be if the distribution, in case of recovery, was in dispute. Here that is fixed by law. Section 525, on which the appellee relies, omitting matter not pertinent to this case, merely provides that “the period of military service shall not be included in computing any period . . . limited by any law . . . for the beginning of any action . . . by or against any person in military service. . . .” If such an action were brought by a representative of the soldier or sailor in such a manner that the action in reality, though not in form, is an action brought by such soldier or sailor, then the purpose of the statute could only be served by looking through the form to the substance. But our courts have distinctly held that the administrator bringing his action under G. S., 28-173, brings it as a representative of the estate in an official capacity; and neither by statute nor by precedent of the courts has the potential distributee of any recovery, as such, any right to bring the action. Nor has the administrator bringing it as a representative of any such person any such right. Hanes v. Southern Pub. Utilities Co., supra; Hall v. Southern R. R., supra; Christian v. R. R., supra; Halle v. Cavanaugh, 111 Atl., 76. The evidence discloses that there were two sons and a daughter, and probably other relatives, in a position to know of the occurrence on which an action might be founded, certainly eligible for appointment to the administration. In fact, there is evidence tending to show that one of them did, in an action now pending, to which we have not found it necessary to advert. At any rate, we are constrained to hold that the most liberal construction of the Soldiers’ and Sailors’ Act does not warrant us in holding that it has such application to the present proceeding as to justify its maintenance. The case should have been nonsuited, and the order to the contrary is Reversed.