Forsyth County v. Barneycastle

197 S.E.2d 576 (1973)

18 N.C. App. 513

FORSYTH COUNTY v. Marie Myers BARNEYCASTLE, Administratrix of the Estate of Mattie Myers Sloan, and Virginia D. Myers Lumsden.

No. 7321SC307.

Court of Appeals of North Carolina.

June 27, 1973.

Certiorari Denied August 31, 1973.

*577 P. Eugene Price, Jr., and Chester C. Davis, Asst. County Atty., Winston-Salem, for plaintiff appellant.

Randolph & Randolph, by Clyde C. Randolph, Jr., and Doris G. Randolph, Winston-Salem, for defendant appellee.

Certiorari Denied by Supreme Court August 31, 1973.

BALEY, Judge.

Since this appeal was filed, the North Carolina Supreme Court, speaking through Chief Justice Bobbitt, has issued a comprehensive opinion setting forth the present status of the law concerning death by wrongful act as it is or may be affected by the passage of Chapter 215, 1969 Session Laws, which was ratified on 14 April 1969now codified as 28-174. Bowen v. Constructors Equipment Co., N.C., 196 S.E.2d 789 (opinion filed 1 June 1973).

The court does not, however, make a definitive holding upon the precise questions raised by this appeal as they were not directly presented in the Bowen case. Here we have the question of whether a compromise settlement without litigation is governed by the same rule applicable to recovery by trial, and the more troublesome question of what constitutes damages recoverable for death by wrongful act and how such damages are to be distributed.

An administrator has the right to compromise a disputed claim if he acts in good faith and exercises the care which an ordinarily sensible and prudent man would exercise in dealing with his own property under like circumstances. McGill v. Freight, 245 N.C. 469, 96 S.E.2d 438. This rule is applicable to a purely statutory cause of action for wrongful death, and money received by a compromise settlement stands on the same basis as if it had been recovered by litigation. In Re Estate of Ives, 248 N.C. 176, 102 S.E.2d 807, 72 A.L.R.2d 278, with annotation; McGill v. Freight, supra.

*578 All concerned parties appear satisfied with the amount of the settlement obtained by the administratrix in this case. There is no evidence of bad faith or fraud and the administratrix seems to have exercised the care of an ordinarily prudent person in negotiating the compromise. The funds received in compromise should, therefore, be distributed in the same manner as if obtained after litigation.

To determine what constitutes damages recoverable for death by wrongful act and how such damages are to be distributed necessitates a careful look at the wrongful death statute, G.S. § 28-173, which was not changed by the General Assembly in 1969, and the statute providing damages recoverable for death by wrongful act, G.S. § 28-174, which was changed by the General Assembly in 1969.

Plaintiff, Forsyth County, seeks to recover a debt of decedent. Under G.S. § 28-173, before 1969 and now, the amount recovered in an action for wrongful death under the statute "is not liable to be applied as assets, in the payment of debts. . ." with certain exceptions not here applicable. If the funds obtained by compromise settlement are for damages recoverable for death by wrongful act, the plaintiff has no enforceable claim against these funds or any portion of them.

G.S. § 28-174, as rewritten in 1969, now reads:

"Damages recoverable for death by wrongful act; evidence of damages(a) Damages recoverable for death by wrongful act include: (1) Expenses for care, treatment and hospitalization incident to the injury resulting in death; (2) Compensation for pain and suffering of the decedent; (3) The reasonable funeral expenses of the decedent; (4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected; a. Net income of the decedent, b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered, c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered; (5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence; (6) Nominal damages when the jury so finds. (b) All evidence which reasonably tends to establish any of the elements of damages included in subsection (a), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act."

Under the present provisions of G.S. § 28-174 the conclusion seems inescapable that all of the items of damage which might conceivably have been set out in a claim for personal injuries prior to death are now includable in an action for damages for death by wrongful act. Any recovery in an action for wrongful death would of necessity cover these express items. All damages "recoverable for death by wrongful act" as enumerated in G.S. 28-174 are subject to the exemption conferred by G.S. § 28-173. The plain language of the two statutes as presently in effect, in our judgment permits no other result. "Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts *579 must give it its plain and definite meaning.. . ." 7 Strong, N.C. Index 2d, Statutes, § 5, p. 77; Canteen Service v. Johnson, Comr. of Revenue, 256 N.C. 155, 123 S.E.2d 582, 91 A.L.R.2d 1127; Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129.

We cannot speculate about what the General Assembly may have intended to say when it is clear what they did say. In the context of the present factual situation, we hold that there is no inconsistency in the two statutes, G.S. § 28-173 and G.S. § 28-174, which cannot be reconciled and give effect to both as written. In United States v. Missouri Pacific Railroad Co., 278 U.S. 269, 278, 49 S. Ct. 133, 136, 73 L. Ed. 322, 377 (1928), the Supreme Court said:

". . . [W]here the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended."

If there is to be any change in G.S. § 28-173 or G.S. § 28-174, which are now clear as written, it is a matter for the legislature, not the court.

We have carefully considered the other assignments of error brought forth by plaintiff and find them without merit.

As plaintiff's claim is a debt which is collectible only from the general assets of the decedent's estate, and the settlement here constitutes a specific fund recovered for death by wrongful act under the terms of G.S. § 28-174, the payment of plaintiff's claim from the settlement would not be enforceable.

Defendant administratrix is entitled to summary judgment adjudicating that the funds represented by the compromise settlement are not subject to the payment of plaintiff's claim.

Affirmed.

BRITT and HEDRICK, JJ., concur.