McHorney v. Wooten, 234 N.C. 110 (1951)

Sept. 19, 1951 · Supreme Court of North Carolina

234 N.C. 110

CLARENCE McHORNEY, Admr., v. LULA M. WOOTEN, Admx., et al.

(Filed 19 September, 1951.)

Death § 5b—

Where death is the result of the sum total of the torts, neglects and defaults of several parties, all may be joined in the action for wrongful death. G.S. 28-173.

This opinion was written in accordance with the Court’s decision and filed by order of the Court after Chief Justice Stacy’s death.

Valentine, J., took no part in the consideration or decision of this case.

Appeal by defendants from Morris, J., January Term, 1951, Pasquo-tank — from Camden.

Civil action to recover damages for the wrongful death of plaintiff’s intestate, alleged to have been caused by the successive, joint and concurrent neglect or default of the defendants.

The facts alleged in the instant complaint in respect of the acts of negligence of the defendants are identical with those set out in the companion case of Barber v. Wooten, Admx., concurrently being decided, except here the plaintiff’s intestate was the driver of the McHorney car and ■only two parties defendant have been sued.

Separate demurrers were interposed by the defendants for misjoinder •of parties and causes. Demurrers overruled; exceptions.

The defendants appeal, assigning errors.

McMullan & Aydlett for plaintiff, appellee.

Frank B. Aycock, Jr., for defendant Wooten, appellant.

J. Henry LeRoy for defendant Lay den, appellant.

Stacy, C. J.

The judgment overruling tlie demurrers will be upheld on authority of what is said in the companion case of Barber v. Wooten, Admx., ante, 107.

This case affords perhaps a clearer, if not a more pronounced, distinction from the Atkins case, 208 N.C. 245, 179 S.E. 889, than does the Barber case. Here, the action is for the wrongful death of plaintiff’s intestate — -the'result of the sum total of all the torts, neglects or defaults of the defendants which culminated in the right given by the “Lord Campbell Act.” G.S. 28-173.

The demurrers were properly overruled.

Affirmed.

Note: This opinion was written in accordance with the Court’s decision and filed by order of the Court after Chief Justice Stacy's death.

YaleNtihe, J., took no part in the consideration or decision of this case.