{
  "id": 8554576,
  "name": "ODIS FLETCHER KENDRICK v. GLENN WINFRED CAIN and GEORGE E. HADDOCK",
  "name_abbreviation": "Kendrick v. Cain",
  "decision_date": "1968-07-10",
  "docket_number": "",
  "first_page": "557",
  "last_page": "560",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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    {
      "cite": "217 N.C. 329",
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      "reporter": "N.C.",
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      "cite": "148 S.E. 2d 554",
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      "reporter": "S.E.2d",
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    {
      "cite": "267 N.C. 521",
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      "reporter": "N.C.",
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  "last_updated": "2023-07-14T18:11:01.747951+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Brock and Parker, JJ., concur."
    ],
    "parties": [
      "ODIS FLETCHER KENDRICK v. GLENN WINFRED CAIN and GEORGE E. HADDOCK."
    ],
    "opinions": [
      {
        "text": "Mallard, C.J.\nThe pertinent allegations of the complaint, briefly stated, are that plaintiff\u2019s minor son, Jimmy Ray Kendrick, on 8 December 1965 died as the result of injuries sustained in a collision between a pickup truck, in which he was a passenger, being operated by the defendant Haddock and an automobile being operated by the defendant Cain; and that alleged negligence on the part of each of the drivers constituted a proximate cause of the accident. Jimmy Ray Kendrick was pronounced dead on arrival at Randolph Hospital. Plaintiff further alleges that at such time the decedent was twenty years of age, lived with his father and mother and had average monthly earnings in the sum of $332.00. The complaint contains no other allegations in connection with loss of prospective earnings; no allegation whatever is set forth with respect to funeral expenses.\nOn page two of this record there appears a \u201cStatement of Case on Appeal,\u201d the first sentence reading, \u201cThis is a civil action instituted by the plaintiff for the loss of services of a minor son growing out of the wrongful death of Jimmy Ray Kendrick arising out of an automobile collision.\u201d This statement seems to be contradicted by paragraph XVII of plaintiff\u2019s complaint which reads:\n\u201cAs a proximate result of defendants\u2019 negligence, plaintiff has suffered damages and loss for the personal injury and wrongful death of his minor son in the amount of twenty-five thousand and no/100 ($25,000.00) dollars for the personal injury and wrongful death of his minor son, Jimmy Ray Kendrick.\u201d\nThe attorneys for the parties entered into the following stipulation which appears at the end of the record on appeal:\n\u201cIt is stipulated and agreed that the foregoing shall be and is the statement of case on appeal to the Court of Appeals of North Carolina.\u201d\nIn this stipulation the term \u201cstatement of case on appeal\u201d relates to the entire record on appeal instead of relating to the single paragraph on page two of the record entitled, \u201cStatement of Case on Appeal.\u201d\nThe \u201cStatement of Case on Appeal\u201d on page two of the record appears to be used as a brief introduction to the record on appeal. This is not required under Rule 19(a) of the Rules of Practice in the Court of Appeals.\nIn this case this \u201cStatement of Case on Appeal\u201d appearing on page two of the record on appeal contains a statement as to the nature of the cause of action which is not supported by the complaint. We hold that the allegations in the complaint are controlling and that the cause of action alleged is one for personal injuries to, and for the wrongful death of, Jimmy Ray Kendrick. The plaintiff, in his individual capacity as father of the deceased, cannot maintain this action.\nThe Court did not commit error in allowing the demurrers of the defendants. G.S. 28-173; Horney v. Pool Company, 267 N.C. 521, 148 S.E. 2d 554; White v. Comrs. of Johnston, 217 N.C. 329, 7 S.E. 2d 825.\nEven if we could view the complaint as alleging a cause of action for loss of services of his minor son, the allegation that the son was dead on arrival at the hospital after sustaining injuries would defeat a recovery. It is the law in North Carolina that if a minor child is injured by the wrongful act or omission of another, and death is instantaneous, the father does not have the right to recover damages for the loss of services of such child. White v. Comrs. of Johnston, supra.\nPlaintiff contends that his motion to amend his complaint to allege loss of services and to recover funeral expenses should have been allowed. In North Carolina it is well settled that there is a distinction between a defective statement of a good cause of action, which may be amended, and a statement of a defective cause of action, which may not be amended. We hold that the plaintiff has stated a cause of action that only a personal representative could bring under the provisions of G.S. 28-173, and therefore, he has stated a defective cause of action and not a defective statement of a good cause of action. It follows and we so decide that the judgment of Judge Exum denying the motion to amend is correct. In Mills v. Richardson, 240 N.C. 187, 81 S.E. 2d 409, Justice Bobbitt, speaking for the Court, said, \u201cWhere there is a defective statement of a good cause of action, the complaint is subject to amendment; and the action should not be dismissed until the time for obtaining leave to amend has expired. G.S. 1-131. But where there is a statement of a defective cause of action, final judgment dismissing the action should he entered.\u201d (Emphasis added.)\nThe judgment of the court sustaining the demurrers, dismissing the action, and denying plaintiff\u2019s motion to amend is\nAffirmed.\nBrock and Parker, JJ., concur.",
        "type": "majority",
        "author": "Mallard, C.J."
      }
    ],
    "attorneys": [
      "John Randolph Ingram for plaintiff-appellant Jordan, Wright, Henson & Nichols by William B. Rector, Jr., for defendant-appellee Glenn Winfred Cain.",
      "Smith, Moore, Smith, Schell & Hunter by Stephen Millikin and Larry B. Sitton for defendant-appellee George E. Haddock."
    ],
    "corrections": "",
    "head_matter": "ODIS FLETCHER KENDRICK v. GLENN WINFRED CAIN and GEORGE E. HADDOCK.\n(Filed 10 July 1968.)\n1. Appeal and Error \u00a7 42\u2014\nWhere the \u201cStatement of Case on Appeal\u201d contains a statement that the action is for the loss of services of plaintiff\u2019s minor son, but the complaint alleges a cause of action for personal injuries and the wrongful death of the son, the allegations of the complaint are controlling as to the nature of the action.\n2. Death \u00a7 3\u2014\nA father may not maintain an action in his individual capacity for the wrongful death of his minor son, and demurrer to a complaint alleging such a cause of action is properly sustained.\n3. Parent and Child \u00a7 4\u2014\nIf a minor, child is injured by the wrongful act or omission of another and death is instantaneous, the father may not recover damages for the loss of services of the child.\n4. Pleading's \u00a7 33\u2014\nA defective statement of a good cause of action may be cured by amendment, but a statement of a defective cause of action may not.\n5. Same; Death \u00a7 3\u2014\nA complaint by a father in his individual capacity seeking to recover for the wrongful death of his minor son states a defective cause of action and not a defective statement of a good cause of action, since such an action may only be brought by a personal representative, G.S. 28-173, and plaintiff\u2019s motion to amend his complaint to allege loss of services and funeral expenses is properly denied.\n6. Pleadings \u00a7\u00a7 26, 33\u2014\nWhere there is a defective statement of a good cause of action, the complaint is subject to amendment and the action should not be dismissed until the time for obtaining leave to amend has expired, G.S. 1-131, but where there is a statement of a defective cause of action, final judgment dismissing the action should be entered.\nAppeal by plaintiff from Exum, J., 2 January 1968 Civil Session of Randolph Superior Court.\nPlaintiff, in his individual capacity as father of a 20-year old minor, seeks to recover of the defendants for the alleged wrongful death of Jimmy Ray Kendrick, his minor son. Plaintiff also alleges that his son suffered extensive head injuries and lacerations of the face and forehead \u201cwhich would have caused him extreme pain,\u201d and plaintiff seeks to recover for personal injuries to his son.\nDefendant Cain before answering filed a written demurrer, asserting that plaintiff in his individual capacity does not have a right to sue and therefore does not allege a cause of action.\nDefendant Haddock before answering filed a written demurrer, asserting that plaintiff has alleged no cause of action and does not have a right to sue. Defendant Haddock further asserts that \u201cOdis Fletcher Kendrick, Administrator of the Estate of Jimmy Ray Kendrick\u201d in a wrongful death action against these two defendants, which was tried 3 April 1967, recovered of the defendant Haddock a judgment for $10,000 which has been paid.\nFrom a judgment sustaining the demurrers, dismissing the action, and denying plaintiff\u2019s motion to amend the complaint, plaintiff appeals to the Court of Appeals.\nJohn Randolph Ingram for plaintiff-appellant Jordan, Wright, Henson & Nichols by William B. Rector, Jr., for defendant-appellee Glenn Winfred Cain.\nSmith, Moore, Smith, Schell & Hunter by Stephen Millikin and Larry B. Sitton for defendant-appellee George E. Haddock."
  },
  "file_name": "0557-01",
  "first_page_order": 579,
  "last_page_order": 582
}