McIntyre v. Josey

Annotate this Case

79 S.E.2d 202 (1953)

239 N.C. 109

McINTYRE v. JOSEY.

No. 602.

Supreme Court of North Carolina.

December 16, 1953.

*203 A. J. Fletcher, F. T. Dupree, Jr., and G. Earl Weaver, Raleigh, for defendant-appellant.

James W. Mason, Laurinburg, for the plaintiff-appellee.

ERVIN, Justice.

The appeal presents this question for decision: Can the collector of the estate of a deceased tort-feasor be sued in his representative capacity for an injury to personal property caused by the wrongful act of the tort-feasor?

The answer to this question is to be found in G.S. § 28-172 rather than in the statutes invoked by the defendant.

G.S. § 28-172 was originally enacted as Section 63 of Chapter 113 of the Public Laws of 1868-69. It is couched in these words: "Upon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, except as hereinafter provided, shall survive to and against the executor, administrator or collector of his estate."

This statute clearly manifests this two-fold legislative purpose: (1) To declare what causes of action survive the death of the person in whose favor or against whom they have accrued; and (2) to designate the persons who may sue or be sued upon such surviving causes of action.

The legislature employs language of broad signification to describe the causes of action which survive. It declares in express terms that "all demands whatsoever, and rights to prosecute or defend any action or special proceeding * * *, except as hereinafter provided, shall survive" the death of the person in whose favor or against whom they have accrued. The exceptive phrase "except as hereinafter provided" refers to G.S. § 28-175, which was originally enacted as Section 64 of Chapter 113 of the Public Laws of 1868-69, and which provides that "the following rights of action do not survive: 1. Causes of action for libel and for slander, except slander of title. 2. Causes of action for false imprisonment and assault and battery. 3. Causes where the relief sought could not be enjoyed, or granting it would be nugatory, after death."

It appears, therefore, that under G.S. § 28-172 all causes of action survive the death of the person in whose favor or against whom they have accrued, except the causes of action specified in G.S. § 28-175. Suskin v. Maryland Trust Co., 214 N.C. 347, 199 S.E. 276; McIntosh on North Carolina Practice and Procedure in Civil Cases, section 266.

Since it is not one of the causes of action enumerated in G.S. § 28-175, a cause of action for a tortious injury to personal property survives the death of either party. 1 C.J.S., Abatement and Revival, § 140. See, also, in this connection: Butner v. Keelhn, 51 N.C. 60; Howcott Ex'rs v. Warren, 29 N.C. 20; Molton v. Miller, 10 N.C. 490; Browne v. Blick, 7 N.C. 511; Cutlar v. Brown's Ex'rs, 3 N.C. 182; McAlister's Adm'rs v. Spiller's Ex'rs, 1 N.C. 314.

We return at this point to the specific question whether the collector of the estate of a deceased tort-feasor can be sued in his representative capacity upon a cause of action of this nature. We are compelled to answer this question in the affirmative. If we should do otherwise, we would fly in the face of the positive declaration of G.S. § 28-172 that when a cause of action survives the death of the person in whose favor or against whom it has accrued, it survives "to and against the executor, administrator or collector of his estate."

*204 The exact question under consideration arose in the case of Shields v. Lawrence, 72 N.C. 43, where remaindermen sued a life tenant to recover damages for any injury to land in the nature of waste, and the life tenant died pending the action. The Court made these adjudications: (1) That the cause of action survived against the collector of the estate of the deceased life tenant under the statutes now codified as G.S. § 28-172 and G.S. § 28-175, which were then incorporated in Sections 113 and 114 of Chapter 45 of Battle's Revisal; and (2) that the action could be continued against the collector of the estate of the deceased life tenant under the statute now embodied in G.S. § 1-74, which was then incorporated in Section 64 of Chapter 17 of Battle's Revisal, because such statute provided that "no action abates by the death * * * of a party * * * if the cause of action survives, or continues."

For the reasons given, the judgment overruling the demurrer is

Affirmed.