COMPETITOR LIAISON BUREAU OF NASCAR, Inc.,
v.
Mrs. J. R. MIDKIFF and J. R. Midkiff, Administrator of the Estate of Jesse Midkiff, Deceased.
No. 744.
Supreme Court of North Carolina.
June 7, 1957.*470 Long, Ridge, Harris & Walker, Graham, for plaintiff-appellant.
Thomas C. Carter, Burlington, Clarence Ross, Graham, and Basil Sherrill, Burlington, for defendant-appellee.
BOBBITT, Justice.
Plaintiff assigns as error the failure of the court to make certain requested findings of fact and conclusions of law; but these assignments are based on a misconception of the nature of the hearing. The hearing was not on evidence submitted to the court, upon waiver of jury trial in accordance with G.S. § 1-184. When this procedure is adopted, a statement of the court's findings of fact and conclusions of law is appropriate. G.S. § 1-185; City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486. Here, the cause was submitted for decision on the facts stipulated.
*471 Appellant assigns as error certain recitals in the judgment, indicating the legal reasoning upon which the court reached the conclusion embodied in the judgment. These assignments do not require separate consideration; for, whether we agree in whole or in part with the court's reasoning, the only question posed for decision is whether, upon the facts stipulated, the judgment is correct.
While appellant excepted, it did not appeal from said judgment dismissing this action as to J. R. Midkiff, administrator of the estate of Jesse Midkiff, deceased. Appellant undertakes to base an assignment of error on his exception to said judgment, but there is no discussion of this assignment in its brief. Under well-established rules, this assignment is deemed abandoned.
In Nascar, Inc., v. Blevins, 242 N.C. 282, 87 S.E.2d 490, 492, this question was presented: "Do the release provisions of registration agreement executed by participant in stock car race prior to entering race event constitute a bar to claim for injury and death on account of alleged negligence of plaintiffs during course of race?" Winborne, J. (now C. J.), said: "Patently as here presented this is a moot question. In the first place sufficient facts are not agreed to present a controversy cognizable under the Uniform Declaratory Judgment Act. It is not admitted that the death of William W. Blevins, participant in a stock car race, was the proximate result of negligence of any one."
As in Nascar, Inc., v. Blevins, supra, the facts stipulated herein do not establish that the death of Jesse Midkiff "was the proximate result of negligence of any one."
Appellant presents a different question. It is based on the fact that Jesse Midkiff was under 21 years of age when he signed the registration agreement and also when he was killed.
Appellant alleges and contends that Mrs. J. R. Midkiff's right to the death benefit of $3,000 otherwise due her under plaintiff's benefit plan is now barred because the administrator had the right to avoid and disaffirm the registration agreement entered into by the minor intestate and has elected to do so by the institution of the wrongful death action.
Before dealing directly with appellant's basic contention, the facts stated below should be noted.
Close consideration of the registration agreement discloses: 1. The only signature thereon is that of Jesse Midkiff, the applicant for registration. 2. Upon (a) "issuance of Nascar license" to the applicant, and (b) "payment of fees required by Nascar," the applicant, or his death beneficiary, is entitled only to the benefits provided by plaintiff's benefit plan for injuries (including death) the applicant "might sustain in Nascar-sanctioned racemeets or other events" pursuant to the contract between Nascar and plaintiff and the insurance carrier. 3. The amount to which the applicant or his death beneficiary would be entitled is not stated. 4. The identity of the party or parties obligated to pay whatever is due the applicant or his death beneficiary is not stated.
On the facts stipulated, Mrs. J. R. Midkiff was entitled to recover $3,000 under plaintiff's benefit plan. From whom? Plaintiff's benefit plan (the terms of which are not set forth in the registration agreement) was underwritten by an insurance company. Whether originally provided by said insurance company, by plaintiff, or otherwise, the $3,000 was deposited by plaintiff with the clerk as the death benefit to which Mrs. J. R. Midkiff would be entitled under plaintiff's benefit plan unless she is barred from recovering any amount thereunder by reason of the administrator's wrongful death action now pending against plaintiff and others. Hence, for present purposes, we dismiss as *472 immaterial questions that come to mind, unanswered by the facts stipulated, as to the original source of the $3,000.
Appellant's said basic contention rests upon the premise that the administrator had the right to elect whether he would affirm or disaffirm said registration agreement and that he has elected to avoid and disaffirm it.
The doctrine of election of remedies applies when a person must choose between inconsistent remedial rights, "the assertion of one being necessarily repugant to, or a repudiation of, the other." 28 C.J.S. Election of Remedies §§ 1 and 4. Jenkins v. Trantham, 244 N.C. 422, 426, 94 S.E.2d 311; Davis v. Hargett, 244 N.C. 157, 162, 92 S.E.2d 782; Surratt v. Chas. E. Lambeth Ins. Agency, 244 N.C. 121, 131, 93 S.E.2d 72; Machine Co. v. Owings, 140 N.C. 503, 53 S.E. 345, 8 L.R.A.,N.S., 582.
When the doctrine applies, the available co-existing, but inconsistent, remedial rights, vest in the same person; otherwise, there can be no right of election. "* * * an election of remedies presupposes a right to elect." 18 Am.Jur., Election of Remedies sec. 10.
The administrator's action for wrongful death is statutory. G.S. § 28-173. The administrator neither has nor claims any right to recover the death benefit provided by said registration agreement. Nor does he seek to recover the $2 registration fee paid by the minor intestate. Whether an action by the administrator to recover said $2 registration fee would constitute an avoidance and disaffirmance is an academic question. In short, upon the facts stipulated, the administrator has not received, nor does he claim, any benefit under and by virtue of said registration agreement, and has made no election with reference thereto.
The right to recover the death benefit provided by said registration agreement vested exclusively in Mrs. J. R. Midkiff, the beneficiary named therein. She has asserted and now asserts her right to recover this death benefit. She neither has nor claims any right to the $2 registration fee.
Questions as to the legal effect, if any, of Mrs. J. R. Midkiff's recovery herein of the $3,000 death benefit, upon the administrator's wrongful death action, and questions as to the validity, legal effect and scope of the release provisions of said registration agreement, may be presented in said wrongful death action. Blevins v. France, 244 N.C. 334, 93 S.E.2d 549.
Suffice to say, on the facts stipulated, Mrs. Midkiff, as death beneficiary under plaintiff's benefit plan, is entitled to the $3,000 fund. Hence, the judgment is affirmed. It is noted that the $2 deposit, not referred to in the judgment, is available to the use of appellant.
Affirmed.
HIGGINS, J., took no part in the consideration or decision of this case.