{ "id": 8568693, "name": "HAL W. BROADFOOT, Ancillary Administrator of the Estate of RICHARD D. ECHARD, v. ANNIE SMITH EVERETT, Executrix of the Estate of WILLIAM AUSTIN EVERETT", "name_abbreviation": "Broadfoot v. Everett", "decision_date": "1967-05-24", "docket_number": "", "first_page": "429", "last_page": "433", "citations": [ { "type": "official", "cite": "270 N.C. 429" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "73 York 66", "category": "reporters:state", "reporter": "York", "weight": 2, "year": 1960, "pin_cites": [ { "parenthetical": "C. P. of Lehigh County" } ], "opinion_index": 0 }, { "cite": "17 A.L.R. 2d 502", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1951, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "44 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "227 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627407 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/227/0686-01" ] }, { "cite": "102 S.E. 2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "248 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621185, 8621212 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/248/0176-01", "/nc/248/0176-02" ] }, { "cite": "117 S.E. 2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "253 N.C. 807", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627333 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/253/0807-01" ] }, { "cite": "7 S.E. 2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "217 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606620 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/217/0329-01" ] }, { "cite": "133 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "260 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576048 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/260/0688-01" ] }, { "cite": "152 S.E. 2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "269 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561972 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/269/0110-01" ] }, { "cite": "148 S.E. 2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "334" }, { "page": "205" } ], "opinion_index": 0 }, { "cite": "267 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559245 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0328-01" ] }, { "cite": "77 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601740 ], "opinion_index": 0, "case_paths": [ "/nc/238/0145-01" ] }, { "cite": "365 Pa. 529", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1225619 ], "opinion_index": 0, "case_paths": [ "/pa/365/0529-01" ] } ], "analysis": { "cardinality": 567, "char_count": 12762, "ocr_confidence": 0.582, "pagerank": { "raw": 1.3707510410510586e-07, "percentile": 0.6382551646833464 }, "sha256": "7aa14358a9c0593e6735d8ca73a4387b265e9c853adf282d1168b37cb371153f", "simhash": "1:1a7bd459d62d8e5a", "word_count": 2149 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HAL W. BROADFOOT, Ancillary Administrator of the Estate of RICHARD D. ECHARD, v. ANNIE SMITH EVERETT, Executrix of the Estate of WILLIAM AUSTIN EVERETT." ], "opinions": [ { "text": "Shabp, J.\nAs they relate to the facts of this case and the question presented by this appeal, the Pennsylvania statutes authorizing the action for wrongful death differ from North Carolina\u2019s only in that the period prescribed for the institution of the action in Pennsylvania is one year while in North Carolina it is' two years. G.S. 28-173, G.S. 1-53; Purdon\u2019s Pa. Stat. Ann. tit. 12, \u00a7\u00a7 1601-1603 (1953); Echon v. Pennsylvania R. Co., 365 Pa. 529, 76A 2d 175.\nPrior to the enactment of the proviso to G.S. 1-21 (N. C. Pub. Laws 1955, ch. 544), plaintiff\u2019s right to maintain this action would, under the decision in Bank v. Appleyard, 238 N.C. 145, 77 S.E. 2d 783, have been unquestioned. The Court would have applied North Carolina\u2019s two-year statute of limitations. The aftermath of the Appleyard decision, however, was that the legislature amended G.S. 1-21 so that it now reads:\n\u201cDefendant out of State; when action begun or judgment em-forced \u2014 If, when the cause of action accrues or judgment is rendered or docketed against a person, he is out of the State, action may be commenced, or judgment enforced, within the times herein limited, after the return of the person into this State, and if, after such cause of action accrues or judgment is rendered or docketed, such person departs from and resides out of this State, or remains continuously absent therefrom for one year or more, the time of his absence shall not be a part of the time limited for the commencement of the action, or the enforcement of the judgment. Provided, that where a cause of action arose outside of this State and is barred by the laws of the jurisdiction in which it arose, no action may be maintained in the courts of this State for the enforcement thereof, except where the cause of action originally accrued in favor of a resident of this State.\u201d\nAfter the 1955 amendment added the above proviso, this Court first construed G.S. 1-21 in the case of Little v. Stevens, 267 N.C. 328, 148 S.E. 2d 201 (filed 25 May 1966). We held that the proviso was not a limitation upon the tolling provisions of the statute but was \u201ca limited borrowing statute, operating to bar the prosecution in this State of all claims barred either in the State of their origin or in this State.\u201d Id. at 334, 148 S.E. 2d at 205. Therefore, if plaintiff\u2019s claim is barred in Pennsylvania, where the cause of action arose, it is also barred here, for G.S. 1-21 now bars all stale foreign claims unless they originally accrued in favor of a resident of North Carolina.\nPlaintiff administrator was himself a resident of North Carolina at the time of the death of his foreign intestate, but he was not appointed ancillary administrator until more than a year after the death of his intestate. Although, under both North Carolina and Pennsylvania law, only the administrator was authorized to bring this action, Pa. R. Civ. Proc. 2202 (1967); G.S. 28-173; Kinlaw v. R. R., 269 N.C. 110, 152 S.E. 2d 329, it did not accrue in his favor, for he has no beneficial interest in the recovery. Graves v. Welborn, 260 N.C. 688, 133 S.E. 2d 761; White v. Comrs. of Johnston, 217 N.C. 329, 7 S.E. 2d 825; Purdon\u2019s Pa. Stat. Ann. tit. 12, \u00a7 1602 (1953). His intestate\u2019s widow and two surviving children, not he, are the real parties in interest. Dixon v. Briley, 253 N.C. 807, 117 S.E. 2d 747; In re Estate of Ives, 248 N.C. 176, 102 S.E. 2d 807; Davenport v. Patrick, 227 N.C. 686, 44 S.E. 2d 203; Purdon\u2019s Pa. Stat. Ann. tit. 12, \u00a7 1602 (1953). The ancillary administrator, appointed in North Carolina for a foreign decedent killed in Pennsylvania, is \u25a0not a resident of this State within the meaning of the proviso to G.S. 1-21; the real parties in interest have never been residents of North Carolina. Therefore, the only question presented is whether the cause of action was barred in Pennsylvania at the time it was instituted in North Carolina.\nDefendant at all times after her qualification as executrix of Everett on 2 October 1964 (only thirteen days after the death of plaintiff\u2019s intestate) was amenable to the process of Pennsylvania\u2019s courts. Purdon\u2019s Pa. Stat. Ann. tit. 2, \u00a7\u00a7 1410-1413 (1963). Under the Pennsylvania law, any nonresident owner or operator of aircraft who operates (or has the same operated) above the lands and waters of the State of Pennsylvania makes the Secretary of that Commonwealth his agent for the service of process in any action instituted against him in the courts of Pennsylvania by reason of any accident in which such aircraft was involved within the State. The applicable statute, Id. \u00a7 1410, specifically provides that if the nonresident owner or operator has died prior to the commencement of the action, service upon his personal representative may likewise be made upon the Secretary of the Commonwealth of Pennsylvania. If the owner or operator dies after the institution of the action, provision is made for the substitution of his administrator.\nWhen a nonresident defendant is amenable to process, and the institution of plaintiff\u2019s action is not delayed by his absence from the state, there is no need to toll the statute of limitations until he enters or returns to the state. The purpose of a tolling statute is to prevent a defendant from defeating a claim by absenting himself from the state. 34 Am. Jur., Limitations of Actions \u00a7 221 (1941). Logic dictates, and the majority of jurisdictions hold, that, where statutory provision is made for substituted service of process upon a state official in cases arising out of motor accidents within the state, a nonresident defendant has the benefit of applicable statutes of limitations, which are not tolled or suspended by his absence from the jurisdiction. See, Annot., Statute of Limitations \u2014 Nonresident, 17 A.L.R. 2d 502, 516 (1951); 2 A.L.R. 2d Later Case Service 978 (1965), where the cases are collected.\nThe only two Pennsylvania cases in point which have been called to our attention have followed the majority rule. Zarlinsky v. Laudenslager, 73 York 66 (1960) (C. P. of Lehigh County); Grabowski v. Noltes, 11 D & C 2d 627 (1957) (C. P. of Allegheny County). So far as we are advised, the Supreme Court of Pennsylvania has not passed upon this question.\nAs to a cause of action arising in that state, a Pennsylvania law (Act of May 22, 1895, P. L. 112; Purdon\u2019s Pa. Stat. Ann. tit. 12, \u00a7 40 (1953)), provides that any defendant who becomes a nonresident after a cause of action has arisen against him shall not have the benefit of any statute of limitations during the period of his residence outside the state.\nIn Grabowski v. Noltes, supra, the court stated the question for decision as follows: \u201cWhether a resident of the State of Pennsylvania, who becomes a nonresident after the accident, who is charged with liability growing out of a motor vehicle accident, is now entitled to the benefit of the two years statute of limitations notwithstanding the Act of 1895 providing for a suspension of the statute of limitations during the period of his nonresidence from the State.\u201d The court answered the question Yes and allowed defendant's Motion for judgment on the pleadings. It reasoned as follows: The Act of 1895 was passed to prevent the running of the statute where a defendant could not be served within the state because' of his absence; since the Act of May 14, 1929, P. L. 1721, a resident of Pennsylvania who becomes a nonresident- after having been involved in a motor vehicle accident makes the Secretary of the Commonwealth his agent for the service of process; since the\u25a0 defendant could have been served, the public policy against the litigation of stale \"claims requires the conclusion that the running of the statute of limitations is not suspended. \"\nIn Zarlinsky v. Laudenslager, supra (a case similar to Grabowski, supra), the court said that substituted service upon the Secretary of the Commonwealth was \u201cthe ordinary process\u201d whereby the court reached nonresident motorists and \u201cthat therefore, at least in motor vehicle accident cases, the statute of limitations is not tolled by the nonresidence of the defendant.\u201d Id. at 68. The same reasoning which applies the statute of limitations to nonresident motorists also applies it to nonresident aviators.\nAt the time this action was instituted here, it was barred in Pennsylvania where it arose; it is, therefore, also barred in North Carolina. G.S. 1-21; Little v. Stevens, supra. The judgment of the court below is\nAffirmed.", "type": "majority", "author": "Shabp, J." } ], "attorneys": [ "Broughton \u25a0& Broughton for plaintiff appellant.", "Nance, Barrington, Collier & Singleton; Quillin, Buss, Worth & McLeod for defendant appellee." ], "corrections": "", "head_matter": "HAL W. BROADFOOT, Ancillary Administrator of the Estate of RICHARD D. ECHARD, v. ANNIE SMITH EVERETT, Executrix of the Estate of WILLIAM AUSTIN EVERETT.\n(Filed 24 May, 1967.)\n1. Courts \u00a7 20; Limitation of Actions \u00a7 10\u2014\nThe proviso contained in the 1955 amendment to G.S. 1-21 has the effect of barring in this State a cause of action arising in another state if, at the time of the institution of the action here, the cause is barred in the state in which it arose, unless the action originally accrued in favor of a resident of this State.\n2. Same; Death \u00a7 3\u2014\nWhile an action for wrongful death must be brought by the personal representative, the personal representative is not the real party in interest, and therefore the fact that an action for wrongful death is brought by an ancillary administrator appointed in this State does not constitute the action one accruing to a resident of this State within the meaning of the proviso to G.S. 1-21.\n3. Limitation of Actions \u00a7 10\u2014\nThe purpose of tolling a statute of limitations when defendant is not within the state is to prevent a defendant from defeating a claim by absenting himself therefrom, and. where, in the state in which the cause of action arose, a nonresident defendant may be served by substituted service upon a state official, the statute is not tolled so as to preclude the nonresident defendant from asserting the benefits of an applicable statute of limitations. , -\n4. Same\u2014\nThis action for wrongful death was based upon an airplane crash occurring in the State of Pennsylvania, plaintiff\u2019s intestate being a resident of Maryland and defendant's intestate being a resident of North Carolina. The action was not brought until more than a year after cause of action arose, and the State of Pennsylvania prescribed a one-year statute of limitations. Under Pennsylvania law, defendant was subject to substituted service of process. Held: The cause of action being barred in the state in which it arose, the action is barred in this State.\nAppeal by plaintiff from Clark, S.J., 9 January 1967 Civil Session Of CUMBERLAND.\nAction for wrongful death under G.S. 28-173, dismissed upon defendant\u2019s plea in bar.\nThe pertinent facts are either admitted by the pleadings or stipulated. Both plaintiff\u2019s intestate, Richard D. Echard, and defendant\u2019s testate, William Austin Everett, died on 19 September 1964 in the State of Pennsylvania when an aircraft belonging to defendant\u2019s testate (and allegedly piloted by him) crashed on Tuscarora Mountain. Echard was a resident of the State of Maryland. His next of kin (his widow and two surviving children) are not now, and never have been, residents of North Carolina. Plaintiff, a resident of North Carolina, was appointed ancillary administrator for Echard on 23 March 1966 by the Clerk of the Superior Court of Cumberland County. At the time of his death, defendant\u2019s testate was a resident of North Carolina. Defendant, also a resident of this State, duly qualified as Everett\u2019s executrix on 2 October 1964.\nPlaintiff instituted this action in Cumberland County on 26 March 1966 \u2014 one year, five months, and twenty-six days after his intestate\u2019s death in Pennsylvania. As a second further answer and defense, defendant alleged that more than one year elapsed between the time plaintiff\u2019s cause of action accrued on 19 September 1964, and its commencement on 26 March 1966, and, pursuant to the applicable statutes, defendant \u201cspecifically pleads said lapse of time in limitation of and in bar of plaintiff\u2019s cause of action and right to recover, if any.\u201d- In reply; plaintiff alleged (1) that since defendant has never been amenable to Pennsylvania process, \u201cno viable cause of action\u201d has ever existed there which is subject to any statute of limitations in that State; and (2) that the cause of action \u201coriginally accrued in favor of plaintiff as a resident of North Carolina upon his appointment as administrator of Echard.\u201d\nThe parties agreed that, before trial on the merits, the judge might hear and determine the plea in bar without a jury. Judge Clark sustained the plea in bar. From a judgment dismissing the action, plaintiff appeals.\nBroughton \u25a0& Broughton for plaintiff appellant.\nNance, Barrington, Collier & Singleton; Quillin, Buss, Worth & McLeod for defendant appellee." }, "file_name": "0429-01", "first_page_order": 469, "last_page_order": 473 }