{
  "id": 8555674,
  "name": "L. A. YOUNG, Executor of the Estate of THELMA Y. BENSON, Deceased, and MYRA LEE BENSON GILBERT v. R. M. MARSHBURN and SEABOARD COAST LINE RAILROAD COMPANY",
  "name_abbreviation": "Young v. Marshburn",
  "decision_date": "1971-03-31",
  "docket_number": "No. 7111SC114",
  "first_page": "729",
  "last_page": "731",
  "citations": [
    {
      "type": "official",
      "cite": "10 N.C. App. 729"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "133 S.E. 2d 761",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "260 N.C. 688",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8576048
      ],
      "year": 1963,
      "opinion_index": 0,
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        "/nc/260/0688-01"
      ]
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  "last_updated": "2023-07-14T19:51:53.441044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Campbell and Britt concur."
    ],
    "parties": [
      "L. A. YOUNG, Executor of the Estate of THELMA Y. BENSON, Deceased, and MYRA LEE BENSON GILBERT v. R. M. MARSHBURN and SEABOARD COAST LINE RAILROAD COMPANY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nBefore this case was argued, the appellant filed in this Court a motion that L. A. Young, executor of the estate of Thelma Y. Benson, \u201cbe joined as a defendant in this action.\u201d This motion is denied for that L. A. Young, executor, is not a proper party to be joined as a defendant in an action which he alone by statute is authorized to commence. G.S. 28-173.\nThe appellant\u2019s single assignment of error presents the question of whether anyone other than the executor, administrator, or collector of an estate can maintain an action for wrongful death. The answer is no.\n\u201cThe right of action for wrongful death is purely statutory. It may be brought only \u2018by the executor, administrator, or collector of the decedent.\u2019 G.S. 28-173. ... If an action for wrongful death is instituted by one other than the personal representative of a decedent, duly appointed in this State, it should be dismissed. ...\u201d Graves v. Welborn, 260 N.C. 688, 133 S.E. 2d 761 (1963).\nAn action may be dismissed for failure to state a claim upon which relief can be granted on motion filed pursuant to Rule 12(b) (6). We hold that the plaintiff, Myra Lee Benson Gilbert, the adopted daughter of Thelma Y. Benson, may not maintain an action for wrongful death in her own name; therefore, she has failed to state a claim upon which relief can be granted. The order dismissing the action is affirmed.\nAffirmed.\nJudges Campbell and Britt concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Bryan, Jones, Johnson, Hunter & Greene by K. Edward Greene; and Joe Levinson for plaintiff appellant.",
      "Maupin, Taylor & Ellis by William W. Taylor, Jr., for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "L. A. YOUNG, Executor of the Estate of THELMA Y. BENSON, Deceased, and MYRA LEE BENSON GILBERT v. R. M. MARSHBURN and SEABOARD COAST LINE RAILROAD COMPANY\nNo. 7111SC114\n(Filed 31 March 1971)\n1. Parties \u00a7 3\u2014 parties defendant \u2014 wrongful death action \u2014 executor of estate\nAn executor cannot be joined as a party defendant in a wrongful death action, since the executor alone is authorized to commence the action. G.S. 28-173.\n2. Death \u00a7 3; Executors and Administrators \u00a7 8\u2014 wrongful death action \u2014 executor entitled to maintain action\nThe trial court properly dismissed a wrongful death action that was instituted by a person other than the executor of the deceased\u2019s estate. G.S. 28-173.\n3. Rules of Civil Procedure \u00a7 12\u2014 dismissal of action\nAn action may be dismissed for failure to state a claim upon which relief can be granted. G.S. 1A-1, Rule 12(b) (6).\nAppeal by plaintiff, Myra Lee Benson Gilbert, from Bailey, /., September 1970 Session of Johnston Superior Court.\nThis is a civil action instituted by the plaintiff, Myra Lee Benson Gilbert, to recover for the wrongful death of Thelma Y. Benson, plaintiff\u2019s adoptive mother, which resulted from an automobile-train collision on 17 March 1968.\nAfter answering the complaint, the defendants, on 23 July 1970, filed a \u201cMotion to Dismiss and For Judgment on the Pleadings\u201d under the provisions of Rules 12 (b) (6) and 12 (c) of the North Carolina Rules of Civil Procedure.\nAfter a hearing on the defendants\u2019 motion, the trial judge made the following pertinent findings of fact:\n\u201c1. This is a purported action to recover damages for the alleged wrongful death of Thelma Y. Benson, who died as the result of a collision between her automobile and a train of defendant Seaboard Coast Line Railroad Company, operated by defendant, R. M. Marshburn, as engineer, on March 17, 1968.\n\u201c2. Plaintiff Myra Lee Benson Gilbert is an adopted daughter of the deceased and she seeks in this action to recover in her own name and in her own behalf damages for the death of said Thelma Y. Benson.\n\u201c3. L. A. Young, named as plaintiff in the caption of the cause, is executor of the estate of Thelma Y. Benson.\n\u201c4. L. A. Young, as such executor, refused to institute an action against the defendants for the alleged wrongful death of Thelma Y. Benson, and refused to become, and never became, a party to the present action. As such executor he was represented in the administration of said estate by counsel other than those who signed the complaint in this action.\n\u201c5. Counsel who signed the complaint signed only as counsel for Myra Lee Benson Gilbert. They stated in open court that they were not employed by L. A. Young, said executor, but that they used his name as1 a plaintiff in an attempt to comply with the provisions of G.S. 28-173.\n\u201c6. The complaint in said action is not signed by said executor or by counsel purporting to act for him, as provided by G.S. 1-144, which was in effect when said complaint was filed, or as required by Rule 11, North Carolina Rules of Civil Procedure, now in effect.\u201d\nBased on its findings of fact, the court concluded as a matter of law that Myra Lee Benson Gilbert, the adopted daughter of Thelma Y. Benson, had failed to state a claim against either defendant upon which relief could be granted.\nFrom an order dismissing the action, the plaintiff appealed to the North Carolina Court of Appeals.\nBryan, Jones, Johnson, Hunter & Greene by K. Edward Greene; and Joe Levinson for plaintiff appellant.\nMaupin, Taylor & Ellis by William W. Taylor, Jr., for defendant appellees."
  },
  "file_name": "0729-01",
  "first_page_order": 753,
  "last_page_order": 755
}