{ "id": 8520312, "name": "LONNIE WAYNE BOWLING, SR., Administrator of the Estate of and Personal Representative of JESS WILLARD BOWLING, Deceased v. MATTHEW DAVID COMBS, JR., J. R. ROGERSON and BROUGHTON T. DAIL, SR., t/a HERTFORD SUPPLY CO.", "name_abbreviation": "Bowling v. Combs", "decision_date": "1983-01-04", "docket_number": "No. 8213SC72", "first_page": "234", "last_page": "241", "citations": [ { "type": "official", "cite": "60 N.C. App. 234" } ], "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": "86 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1955, "pin_cites": [ { "page": "753" }, { "page": "753" }, { "page": "753" }, { "page": "753-54" } ], "opinion_index": 0 }, { "cite": "242 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608169 ], "weight": 4, "year": 1955, "pin_cites": [ { "page": "11-12" }, { "page": "12" }, { "page": "12" }, { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0001-01" ] }, { "cite": "77 S.E. 2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1953, "pin_cites": [ { "page": "672" }, { "page": "672" }, { "page": "677" } ], "opinion_index": 0 }, { "cite": "238 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602050 ], "weight": 3, "year": 1953, "pin_cites": [ { "page": "177-78" }, { "page": "178" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0174-01" ] }, { "cite": "206 S.E. 2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "22 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11307361 ], "year": 1974, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/22/0476-01" ] }, { "cite": "181 S.E. 621", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "opinion_index": 0 }, { "cite": "208 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611933 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/nc/208/0509-01" ] }, { "cite": "131 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "338" } ], "opinion_index": 0 }, { "cite": "259 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561989 ], "year": 1963, "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0672-01" ] }, { "cite": "166 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "275 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558370 ], "year": 1969, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0250-01" ] }, { "cite": "9 S.E. 632", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1889, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "103 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650134 ], "year": 1889, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/103/0356-01" ] }, { "cite": "36 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1946, "pin_cites": [ { "page": "703" }, { "page": "703" }, { "page": "703" } ], "opinion_index": 0 }, { "cite": "226 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611778 ], "weight": 3, "year": 1946, "pin_cites": [ { "page": "40" }, { "page": "40" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0036-01" ] }, { "cite": "46 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "228 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627546 ], "year": 1948, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0574-01" ] }, { "cite": "154 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "270 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568693 ], "year": 1967, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0429-01" ] }, { "cite": "161 S.E. 2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "274 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559535 ], "year": 1968, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0152-01" ] }, { "cite": "189 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "281 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575323 ], "year": 1972, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0476-01" ] }, { "cite": "66 S.E. 2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "234 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620516 ], "year": 1951, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0202-01" ] } ], "analysis": { "cardinality": 724, "char_count": 16674, "ocr_confidence": 0.791, "pagerank": { "raw": 4.635744616427828e-07, "percentile": 0.9269129204057843 }, "sha256": "95ef7f8395b8aa80b455a72327b62980888019b13d3bca0d30efd5fa7faa3a3f", "simhash": "1:0b73b760063a3049", "word_count": 2715 }, "last_updated": "2023-07-14T17:52:46.639047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Wells concur." ], "parties": [ "LONNIE WAYNE BOWLING, SR., Administrator of the Estate of and Personal Representative of JESS WILLARD BOWLING, Deceased v. MATTHEW DAVID COMBS, JR., J. R. ROGERSON and BROUGHTON T. DAIL, SR., t/a HERTFORD SUPPLY CO." ], "opinions": [ { "text": "WHICHARD, Judge.\nI.\nThe issue is whether the court erred in allowing a motion by the decedent\u2019s widow to set aside a voluntary dismissal entered in an action for the decedent\u2019s wrongful death brought by an administrator who had purported to settle the action without either approval of a superior court judge or written consent of all parties entitled to receive the damages recovered, see G.S. 28A-13-3(a)(23); in substituting the widow, following the administrator\u2019s resignation and the widow\u2019s appointment as successor personal representative, as party plaintiff in the action; and in allowing the widow to prosecute the action to a judgment on a jury verdict. We find no error.\nII.\nOn 22 February 1977 Lonnie Wayne Bowling, Sr. (hereafter Bowling), was appointed administrator of his deceased brother\u2019s estate. On 9 August 1977 Bowling, in his capacity as administrator, filed a complaint against defendants seeking damages for the wrongful death of his intestate. On 18 October 1977 he settled with defendants for $60,000 and released all claims against them. This settlement was consummated without either approval of a superior court judge or written consent of all persons entitled to receive damages, see G.S. 28A-13-3(a)(23), including Flossie \u201cLynn\u201d Bowling Benton (hereafter Benton), widow of decedent. On 22 December 1977 Bowling filed a voluntary dismissal with prejudice in the action.\nOver two years later Benton sought to revoke Bowling\u2019s letters of administration. On 25 January 1980 Bowling was allowed to resign as administrator, and Benton qualified as successor personal representative.\nOn 15 February 1980 Benton, as administratrix, moved (1) to set aside the 22 December 1977 voluntary dismissal, and (2) that she, as administratrix, be substituted as party plaintiff in the wrongful death action. By order dated 13 March 1980 Judge McLelland set aside the voluntary dismissal.\nDefendants thereafter filed answers. Benton was substituted as party plaintiff by order dated 30 June 1980. She adopted the complaint, and the action proceeded to trial.\nThe jury returned a verdict for plaintiff in the sum of $82,500 and found that Benton was not estopped to share in the recovery. The court entered judgment on the verdict, and credited defendants with the $60,000 previously paid in the October 1977 settlement.\nDefendants appeal.\nIII.\nDefendants contend Judge McLelland erred in setting aside the voluntary dismissal, and that the trial judge erred in failing to dismiss the action on the ground that Judge McLelland\u2019s order was erroneous. We disagree.\n\u201cThe right to administer on the estate of an intestate is entirely statutory.\u201d In Re Estate of Edwards, 234 N.C. 202, 203, 66 S.E. 2d 675, 676 (1951). The right of action for wrongful death is also exclusively statutory. E.g., Skinner v. Whitley, 281 N.C. 476, 478, 189 S.E. 2d 230, 231 (1972). Under the Wrongful Death Act, G.S. 28A-18-2, only the \u201ccollector of the decedent\u201d or the personal representative \u2014 i.e., the administrator of an intestate, or the executor of one who dies testate \u2014 may institute an action for wrongful death; and he does so as the representative of the estate. E.g., Stetson v. Easterling, 274 N.C. 152, 155, 161 S.E. 2d 531, 533 (1968); Broadfoot v. Everett, 270 N.C. 429, 431, 154 S.E. 2d 522, 525 (1967). See G.S. 28A-18-2(a), -3. Because the right to an action for wrongful death \u201crests entirely upon [the] Act [,]... [it] must be asserted in conformity therewith,\u201d Webb v. Eggleston, 228 N.C. 574, 576, 46 S.E. 2d 700, 702 (1948). Bowling\u2019s general powers as administrator, as well as his right to sue for wrongful death as personal representative of the estate, were thus entirely statutory, and could only be exercised in conformity with the applicable statutes.\nG.S. 28A-13-3(a)(23) grants to the personal representative of an estate the power\n[t]o maintain actions for the wrongful death of the decedent according to the provisions of Article 18 of this Chapter and to compromise or settle any such claims, whether in litigation or not, provided that any such settlement shall be subject to the approval of a judge of superior court unless all persons who would be entitled to receive any damages recovered under G.S. 28A-18-2fb)(4) are competent adults and have consented in writing. [Emphasis supplied.]\nG.S. 28A-18-2(a) provides that any recovery for wrongful death is to be distributed according to the Intestate Succession Act, G.S. 29-1 to -30. Benton, as the surviving spouse of decedent, is among the persons entitled to receive any recovery under G.S. 28A-18-2(b)(4). See G.S. 29-14. When Bowling settled the wrongful death claim with defendants without either approval by a superior court judge or Benton\u2019s written consent, he failed to exercise the powers granted him as administrator by G.S. 28A-13-3(a)(23) in conformity with its express provisions.\nWhen Bowling commenced the wrongful death action as administrator of the estate, he was \u201cacting in the capacity of a trustee or agent of the beneficiary of the estate,\u201d Harrison v. Carter, 226 N.C. 36, 40, 36 S.E. 2d 700, 703 (1946). In that capacity he failed to exercise his statutory powers in conformity with express provisions of the applicable statute by failing to accord Benton, as a beneficiary of the wrongful death recovery, the statutory protections provided for her benefit. These circumstances constituted a \u201creason justifying relief from the operation of the\u201d voluntary dismissal, G.S. 1A-1, Rule 60(b)(6); and it was therefore properly set aside. It follows that the court did not err in denying defendants\u2019 motion to dismiss on the ground that it was erroneously set aside.\nIV.\nBenton applied for a lump sum worker\u2019s compensation award in May 1977, and the Commission entered an order directing distribution of that award and the $60,000 wrongful death settlement. Defendants argue that Bowling was not required to obtain the written consent of Benton pursuant to G.S. 28A-13-3(a)(23) because \u201cthe general language of\u201d that section \u201cis not operative in a case involving the North Carolina Industrial Commission which is specifically empowered ... to order the distribution of any proceeds recovered in any action against a third party tort-feasor.\u201d See G.S. 97-10.2(f)(l).\nWhen statutes can be reconciled by any fair construction, that construction must be adopted. See State v. Massey, 103 N.C. 356, 358, 9 S.E. 632, 632 (1889). G.S. 97-10.2(f)(1) addresses solely the distribution of proceeds of, inter alia, a wrongful death settlement, whereas G.S. 28A-13-3(a)(23) controls the manner in which a wrongful death action may be settled by an administrator. There is thus no conflict between the statutes, fairly and properly construed, and each remains effective in its respective area of application.\nV.\nDefendants further contend that G.S. 28A-13-3(a)(15), which authorizes the administrator to abandon claims by the estate, controls over G.S. 28A-13-3(a)(23), which requires written consent of beneficiaries to settle a wrongful death claim. \u201cIt is a well established principle of statutory construction that a section of a statute dealing with a specific situation controls, with respect to that situation, other sections which are general in their application.\u201d Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E. 2d 663, 670 (1969); accord, Davis v. Granite Corporation, 259 N.C. 672, 676, 131 S.E. 2d 335, 338 (1963). G.S. 28A-13-3(a)(23) specifically addresses settlement of wrongful death claims and is thus controlling, even where an administrator\u2019s actions may also be characterized as abandonment of a claim by the estate within the more general language of G.S. 28A-13-3(a)(15).\nVI.\nDefendants next contend that because Benton was not a party to the action at the time she moved to have the voluntary dismissal set aside, and was not substituted as party plaintiff until over three months after entry of the order setting aside the dismissal, the order was erroneously entered. Generally, only a party or his legal representative has standing to have an order set aside pursuant to G.S. 1A-1, Rule 60(b); and a stranger to the action may not obtain such relief. See In re Bank, 208 N.C. 509, 181 S.E. 621 (1935); Browne v. Dept. of Social Services, 22 N.C. App. 476, 478, 206 S.E. 2d 792, 793 (1974); G.S. 1A-1, Rule 60(b); W. Shuford, North Carolina Civil Practice and Procedure \u00a7 60-4 (2d ed. 1981). Under the discrete circumstances here, however, Benton cannot properly be regarded as a stranger to the action.\nBowling resigned, and Benton was appointed administratrix, on 25 January 1980. The right to prosecute a wrongful death suit belongs exclusively to the personal representative of the estate. Stetson, Broadfoot, supra; G.S. 28A-18-2(a), -3. \u201c[U]pon the . . . resignation ... of a personal representative, who has properly brought an action for wrongful death, the action does not abate.\u201d Harrison v. Carter, 226 N.C. 36, 40, 36 S.E. 2d 700, 703 (1946). G.S. 28A-10-5G) provides that a resignation \u201cshall not become effective until [, inter alia,] ... [a] successor has been duly qualified.\u201d \u201c \u2018Where an executor or administrator has been removed or discharged, the suit should be continued in the name of his successor in office.\u2019 [Citations omitted.]\u201d Harrison, supra, 226 N.C. at 41, 36 S.E. 2d at 703.\nThus, when Benton made her motion in the cause on 15 February 1980, she was, by virtue of her capacity as ad-ministratrix, the only person entitled to function as plaintiff in the action. She alone had the legal right to be substituted for Bowling as party plaintiff. While it might have been the better practice to have granted Benton\u2019s motion to substitute her as party plaintiff before or simultaneously with the order granting her motion to set aside the dismissal, the 30 June 1980 order which substituted her as party plaintiff cured any defect in the order of procedure. The technicality that Benton was not a party plaintiff when she moved to set aside the dismissal or when the motion was granted is not, under the circumstances, a sufficient basis for holding that the order setting aside the dismissal was erroneously entered.\nVII.\nDefendants finally assign error to the court\u2019s failure to find that Benton was estopped as a matter of law from challenging Bowling\u2019s settlement with them.\nThe minimal elements of equitable estoppel are, as to the party estopped,\n(1) Conduct ... at least . . . reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2). . . conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts.\nHawkins v. Finance Corp., 238 N.C. 174, 177-78, 77 S.E. 2d 669, 672 (1953); see Peek v. Trust Co., 242 N.C. 1, 11-12, 86 S.E. 2d 745, 753 (1955). Additionally, the party asserting estoppel must show, as to his own conduct, \u201c(1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially.\u201d Hawkins, 238 N.C. at 178, 77 S.E. 2d at 672; see Peek, 242 N.C. at 12, 86 S.E. 2d at 753.\nDefendants offered evidence that Benton was informed as early as April 1977 that attempts to settle the claim were being made; that Bowling informed Benton when the settlement was agreed upon; that Benton approved the $60,000 settlement; that Benton executed an application for a lump sum award from the Industrial Commission, which stated that \u201c[sjettlement has been made releasing all claims\u201d; and that Benton knowingly acquiesced in the payment of certain bills incurred by her prior to her husband\u2019s death. Benton testified, however, that she had no memory of being informed of settlement negotiations prior to October 1977; that sometime after 20 October 1977 she was informed by an attorney that settlement had been made for $60,000, and she \u201ctold him [she] had rather not settle for that amount\u201d; that she never received any of the $60,000 settlement; and that she did not recall ever asking Bowling to pay certain bills for her from the estate.\n\u201cThe rule is that where only one inference can reasonably be drawn from undisputed facts, the question of estoppel is one of law for the court to determine.\u201d Hawkins, 238 N.C. at 185, 77 S.E. 2d at 677. See also Peek, 242 N.C. at 12, 86 S.E. 2d at 753. However,\n[h]ere the evidence bearing on the issue of estoppel was conflicting and susceptible of diverse inferences. While the evidence of the defendant^] . . . was sufficient to justify the inference that [they] relied upon and [were] misled by the representations of the plaintiff, nevertheless other phases of the evidence justify the opposite inference.\nPeek, 242 N.C. at 12, 86 S.E. 2d at 753-54. The court thus correctly refused to hold that Benton was estopped as a matter of law from challenging Bowling\u2019s settlement with defendants. The disputed facts were properly submitted to the jury for resolution.\nNo error.\nJudges Vaughn and Wells concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Walton, Fairley & Jess, by Ray H. Walton, for plaintiff ap-pellee.", "W. G. Smith and Bruce H. Jackson, Jr., for defendant appellants." ], "corrections": "", "head_matter": "LONNIE WAYNE BOWLING, SR., Administrator of the Estate of and Personal Representative of JESS WILLARD BOWLING, Deceased v. MATTHEW DAVID COMBS, JR., J. R. ROGERSON and BROUGHTON T. DAIL, SR., t/a HERTFORD SUPPLY CO.\nNo. 8213SC72\n(Filed 4 January 1983)\n1. Death \u00a7 9\u2014 wrongful death settlement \u2014 failure of administrator to follow statute \u2014 relief from voluntary dismissal proper\nThe trial court did not err in setting aside a voluntary dismissal entered in an action for the decedent\u2019s wrongful death brought by decedent\u2019s brother who, as administrator, had purported to settle the action without either approval of a superior court judge or written consent of all parties entitled to receive the damages recovered since when the administrator settled the wrongful death claim with defendant without either approval by a superior court judge or decedent\u2019s widow\u2019s written consent, he failed to exercise the powers granted him as administrator by G.S. 28A-13-3(a)(23) in conformity with its express provisions. G.S. 28A-18-2(a) and G.S. 29-14.\n2. Death \u00a7 10\u2014 statute controlling distribution of wrongful death proceeds not in conflict with statute controlling manner in which action may be settled\nAn order of the North Carolina Industrial Commission which distributed proceeds of a wrongful death settlement did not alleviate the need for the administrator to obtain the written consent of decedent\u2019s widow pursuant to G.S. 28A-13-3(a)(23) since G.S. 9740.2(f)(1) addresses solely the distribution of proceeds of, inter alia, a wrongful death settlement, whereas G.S. 28A-13-3(a)(23) controls the manner in which a wrongful death action may be settled by an administrator.\n3. Death \u00a7 9\u2014 wrongful death action \u2014 statute concerning abandonment of claim not controlling statute concerning settlement of claim\nG.S. 28A-13-3(a)(23) specifically addresses settlement of wrongful death claims and is thus controlling, even where an administrator\u2019s action may also be characterized as abandonment of a claim by the estate within the more general language of G.S. 28A-13-3(a)(15).\n4. Death \u00a7 3.2; Rules of Civil Procedure \u00a7 60\u2014 wrongful death action \u2014 new administrator not party plaintiff when move to set aside dismissal \u2014 insufficient basis for holding dismissal erroneously entered\nIn a wrongful death action where there was a change of administrators and the new administratrix moved to have an earlier voluntary dismissal of the wrongful death action set aside prior to the time she was substituted for the former administrator as a party plaintiff, the technicality that she was not a party plaintiff when she moved to set aside the dismissal or when the motion was granted was not, under the circumstances, a sufficient basis for holding that the order setting aside the dismissal was erroneously entered.\n5. Estoppel \u00a7 4.7 \u2014 equitable estoppel \u2014 question for jury\nThe trial court correctly refused to hold that an administratrix was es-topped as a matter of law from challenging an earlier administrator\u2019s settlement with defendant since the evidence bearing on the issue of estoppel was conflicting and susceptible to diverse inferences.\nAppeal by defendants from Clark, Judge. Judgment entered 3 July 1981 in Superior Court, Brunswick County. Heard in the Court of Appeals 11 November 1982.\nWalton, Fairley & Jess, by Ray H. Walton, for plaintiff ap-pellee.\nW. G. Smith and Bruce H. Jackson, Jr., for defendant appellants." }, "file_name": "0234-01", "first_page_order": 266, "last_page_order": 273 }