In Re the Estate of Ives
102 S.E.2d 807
N.C.
1958
Check Treatment
PARKER, J.

The petitioner has adopted the proper procedure to secure judicial direction as to the method of distribution of the $7,000.00 paid to him by the Farm Bureau Mutual Automobile Insurance Company. In re Estate of Poindexter, 221 N.C. 246, 20 S.E. 2d 49; In re Estate of Mizzelle, 213 N.C. 367, 196 S.E. 364; In re Stone, 173 N.C. 208, 91 S.E. 852.

At common law no action would lie to recover damages for the wrongful death of a person. Armentrout v. Hughes, 247 N.C. 631, 101 S.E. 2d 793. The first innovation upon the common law, in this respect, was brought about by the enactment of 9 and 10 Vict., Ch. 93, which authorized recoveries in such cases. This statute is commonly called Lord Campbell’s Act, because he, who had the rare distinction of having been successively Lord Chief Justice and Lord Chancellor of England, was its author and mainly instrumental in its adoption. Hartness v. Pharr, 133 N.C. 566, 45 S.E. 901. In North Carolina a right of action to recover damages for wrongful death is given by G.S. 28-173, and 28-174, and therefore in this jurisdiction the action for wrongful death exists only by virtue of these statutes. Lamm v. Lorbacher, 235 N.C. 728, 71 S.E. 2d 49.

G.S.- 28-173, “Death by wrongful act; recovery not assets; dying declarations,” reads in part: “The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, except as to burial expenses of the deceased, but shall be disposed of as *181 provided in this chapter for the distribution of personal property in case of intestacy.”

This Court said in Lamm v. Lorbacher, supra: “The right of action is for the personal representative of the deceased only. ‘The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased, and the recovery is not assets in the usual acceptation of the term.’ Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216; Hood v. Telegraph Co., 162 N.C. 92, 77 S.E. 1094; 28 N.C. Law Review 106.”

This Court said in Hartness v. Pharr, supra: “It must be borne in mind that whatever the varying forms of the statutes may be, the cause of action given by them, and also by the original English statute, was in no sense one which belonged to the deceased person or in which he ever had any interest, and the beneficiaries under the law do not claim by, through, or under him, and this is so although the personal representative may be designated as the person to bring the action. Baker v. R. R., 91 N.C., 308. The latter does not derive any right, title, or authority from his intestate, but he sustains more the relation of a trustee in respect to the fund he may recover for the benefit of those entitled eventually to receive it, and he will hold it when recovered actually in that capacity, though in his name as executor or administrator, and though in his capacity as personal representative he may perhaps be liable on his bond for its proper administration. Baker v. R.R., supra.”

In an action to recover damages for wrongful death the real party in interest is the beneficiary under the statute for whom recovery is sought, and not the administrator. Davenport v. Patrick, 227 N.C. 686, 44 S.E. 2d 203.

“It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and equity, and, indeed, admits of illustration from every branch of legal procedure.” Broom’s Legal Maxims, Tenth Ed., 191.

This maxim embodied in the comipon law, and constituting an essential part thereof, is stated in the text books and reported cases. It has its foundation in universal law administered in all civilized lands, for without its recognition and enforcement by the courts their judgments would rightly excite public indignation. This maxim has been adopted as public policy in this state and we have decided in many cases instituted to recover damages for wrongful death that no beneficiary under the statute for whom recovery is sought will be permitted to enrich himself by his own wrong. Davenport v. Patrick, supra; Pearson v. Stores Corp., 219 N.C. 717, 14 S.E. 2d 811; Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835; Harton v. Telephone Co., 141 N.C. 455, 54 S.E. *182 299; Davis v. R. R. 136 N.C. 115, 48 S.E. 591. The right of a person otherwise entitled to receive the money paid for wrongful death, or to share in the distribution of such a sum paid, will be denied where the death of the decedent was caused by such person’s negligence. Davenport v. Patrick, supra; Goldsmith v. Samet, supra.

An administrator sui juris has the power, provided he acts in entire good faith without any fraud, and exercises the care of an ordinarily prudent person, to compromise a purely statutory cause of action for wrongful death. McGill v. Freight, 245 N.C. 469, 96 S.E. 2d 438; 16 Am. Jur., Death, Sections 53 and 159; 25 C.J.S., Death, pp. 1146-7. This necessarily implies that he may compromise and settle claims arising under a statute giving a cause of action for wrongful death with the person liable, either before or after the action is brought.

In re Stone, supra, was a proceeding to determine whether the compensation for wrongful death of an employee of a railroad company killed while engaged in interstate commerce was to be apportioned according to our statute of distribution. The money received was paid by compromise to the administratrix without action. The Court said: “The net sum received by the administratrix under the compromise and settlement with the railroad company stands on the same basis as if it had been recovered by action.”

G.S. 28-173 gives a cause of action, “when the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor. . . .”

A liability of the insurance company under Coverage F of the policy was to pay on behalf of Sam B. Ives, its insured, all sums which the insured shall become legally obligated to pay as damages for the death of a person arising out of the use of his insured automobile. The policy provided that under Coverage F “the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.”

It is manifest from the findings of fact that the insurance company paid the administrator $6,500.00 as compensation for his intestate’s death in consideration of the administrator releasing, acquitting and forever discharging Sam B. Ives, its insured, and itself, from any and all actions, causes of action, claims and demands against its insured, and itself, by the administrator on account of his intestate’s death, which claims and demands necessarily must have been made on the ground that Sam B. Ives, its insured, by his wrongful act, neglect or default was responsible for his intestate’s death. Although there is no finding of fact that Sam B. Ives was negligent in the operation of his automobile, and although the release states that all parties released from liability deny liability, and though there is no finding of fact *183 that Sam B. Ives knew of the settlement, public policy and the law will not permit him to enrich himself as a beneficiary in the distribution of the very sum of money paid by his insurance company to the administrator to release, acquit and forever discharge him of any cause of action, demand or claim against him by the administrator for the wrongful death of his intestate.

These facts are significant: Sam B. Ives filed an answer to the administrator’s petition alleging he was not negligent, and that his mother’s death was caused by the sole proximate negligence of the driver of the other automobile. It is reasonable to infer that in the collision Sam B. Ives’ automobile was damaged. However, he has no allegation in his answer that he had sued the other driver, or that he had made any claim or demand against such driver for damage to his automobile. At the hearing below the administrator testified: Sam B. Ives did not, and offered no evidence. Sam B. Ives makes no contention that the settlement should be upset, but contends that he should share in its proceeds.

Sam B. Ives in his brief quotes a dictum from the case of Legette v. Smith, 226 S. C. 403, 85 S.E. 2d 576, which dictum cites first Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 3 N.E. 2d 17. The Minasian case is no authority for the question presented in the instant proceeding, because in that case the plaintiff had a property right as beneficiary in a policy of life insurance on the life of his wife, and the question was how far culpability for her death deprived him of that property right. See Arnold v. Jacobs, 319 Mass. 130, 65 N. E. 2d 4.

The crucial findings of fact necessary to decide this appeal are amply supported by the stipulations of the parties and the evidence, and these findings of fact support the judgment.

The judgment of Judge Stevens is

Affirmed.