Cummings v. Locklear

183 S.E.2d 832 (1971)

12 N.C. App. 572

John Earl CUMMINGS, Administrator of the Estate of Joyce Dimery Locklear, Deceased, v. Josepheus LOCKLEAR.

No. 7116SC572.

Court of Appeals of North Carolina.

October 20, 1971.

Certiorari Denied December 7, 1971.

*833 Johnson, Hedgpeth, Biggs & Campbell, by John W. Campbell, Lumberton, for plaintiff.

W. Earl Britt, Fairmont, for defendant.

Certiorari Denied by Supreme Court December 7, 1971.

BROCK, Judge.

If the wife had survived, she would have had a cause of action against her husband for damages for personal injury. G.S. § 52-5. Therefore, under the provisions of G.S. § 28-173 the administrator of her estate may maintain an action for wrongful death. The right to sue granted by this statute is not conditioned upon who may be the ultimate beneficiary or beneficiaries of a recovery. This proposition could hardly be more clearly stated than in First Union National Bank of North Carolina v. Hackney, 266 N.C. 17, 145 S.E.2d 352, where it is said: "The fortuitous circumstance that those entitled to the recovery under the Intestate Succession Act happened to be the children rather than collateral kin of the decedent is not germane to the administrator's right of action."

We are aware of the factual difference between Hackney, supra, and the case here under consideration. In Hackney the husband also died of injuries received in the accident, and therefore both parents were deceased. However, we do not view this factual difference as changing the right granted to the administrator by G.S. § 28-173 to maintain this action against the husband-father for the wrongful death of the wife-mother.

*834 In this case if the wife-mother had died intestate of a natural cause her personal estate would have descended one-third to the surviving husband (G.S. § 29-14(2)), and two-thirds divided equally among the four surviving children (G.S. § 29-15(2) and G.S. § 29-16(1)). However, since it was the husband's wrongful act which caused the death of plaintiff's intestate, he may not share in a recovery; therefore, should the jury return a verdict in plaintiff's favor, the Court will enter judgment for only two-thirds of the amount of the verdict. See Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676.

In our opinion summary judgment for defendant was error.

Reversed.

VAUGHN and GRAHAM, JJ., concur.