Since it had been determined earlier that the complaints state claims for which relief can be granted, the hearing for summary judgment was conducted upon defendants' contention that no genuine issue of material fact exists in these cases in that the material facts upon which his claims depend cannot be proven. In sustaining the motions and dismissing the actions the court in effect ruled that the pleadings, affidavits and other materials considered establish as a matter of law that defendants' contention has merit. The following legal principles, rudimentary to the authority of a trial court to summarily dismiss a civil action under Rule 56 of our Rules of Civil Procedure, are pertinent: The burden of establishing that there is no material factual issue to litigate and summary judgment is appropriate is always upon the movant. Oestreicher v. American National Stores, Inc., 290 N.C. 118, 225 S.E.2d 797 (1976). In a summary judgment hearing a non-movant plaintiff is not required to go forward, as at trial, and show in the first instance that he can prove his case; until a movant shows that its motion has merit nothing is required of a non-movant. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); First Federal Savings & Loan Association of New Bern v. Branch Banking & Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972). In order to show that a motion for summary judgment has merit the movant's own forecast of proof, if not contradicted or disputed, "must be such as to establish his right to judgment as a matter of law." Moore v. Fieldcrest Mills, Inc., supra, 296 N.C. at 470, 251 S.E.2d at 422. When these principles of law are applied to the record in these cases it is obvious that the judgments dismissing the actions were erroneously entered, and we vacate them.
The material facts that these defendants had to disprove or show cannot be established before being entitled to judgment as a matter of law were that the children survived Susie Newsom Lynch and her wrongdoing caused or contributed to their deaths and those of the Newsoms. For if either child survived his mother, who died intestate, he had a right to share in or receive her net estate including what she was entitled to receive under the wills of her parents and grandmother; and even if Susie Newsom Lynch survived the children, if she did so by wrongfully causing their deaths, and if her wrongdoing caused or contributed to the deaths of her parents and grandmother, her estate could not profit from those wrongs. In re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807 (1958). Obviously, defendants have not established as a matter of law that the material facts above stated cannot be proven. For in the hearing they did not even address the allegation
On the issue of the childrens' survival defendants' showing consisted principally of an affidavit by the Chief Medical Examiner for the State to the effect that the autopsy findings as to the conditions of the bodies and the nature of the injuries indicate in his opinion that the children died before their mother. This affidavit was effectively met by the affidavit of Dr. Modesto Scharyj, the Medical Examiner for Forsyth County, a long time Professor of Pathology at the Medical School of Wake Forest University, to the effect that in his opinion the autopsy findings do not indicate that either child was dead when the explosion which killed Susie Newsom Lynch occurred, but indicate that she died before her son, John Wesley Lynch. By their cross appeal defendants' argue that Dr. Scharyj is not qualified to express such an opinion and the court erred in receiving it. The argument has no basis: The doctor's affidavit indicates that he is eminently qualified to make deductions from autopsy findings; for it indicates, inter alia, that he is both learned and experienced in the medical science of pathology, has supervised more than 10,000 autopsies, and that his opinions are based upon the very same autopsy findings that defendants' expert opined from. Thus, all the survival issues raised by the pleadings remain to be determined; none has been resolved.
On the other major factual issues in the cases—the alleged wrongdoing of Susie Newsom Lynch in causing the deaths of the children and the Newsoms—defendants only showed that she has not been adjudicated as the "slayer" of the children or the Newsoms under G.S. 31A-3 and that no action to have her so adjudicated was brought by plaintiff within a year of their deaths. But they did not show, or attempt to show, that Susie Newsom Lynch did not cause the deaths involved; and the only materials bearing at all on this factual issue were some laboratory reports from the Chief Medical Examiner's office presented by plaintiff which merely show that wipings taken from her hands indicate that she may have fired a gun before dying. That no action was brought under the slayer statute to declare Susie Newsom Lynch the slayer of the children and the Newsoms is not disputed by plaintiff, and from this established fact defendants argue that plaintiff is barred from proving that her wrongdoing contributed to those deaths. This argument is based upon a misunderstanding of the slayer statute, Article 3, Chapter 31A of our General Statutes. As our Supreme Court made clear in Quick v. United Benefit Life Insurance Co., 287 N.C. 47, 213 S.E.2d 563 (1975): This enactment merely authorizes an additional means of preventing some wrongdoers from profiting from their wrongs; it authorizes an action, if brought within the year, to establish by simplified proof the ineligibility of a slayer to share in the property of his victim; it applies only to felonious killings; it did not abrogate any of the many procedures devised by the common law to prevent one from profiting by his own wrong; a litigant's failure to file an action under the slayer statute within a year of the death involved only bars him from filing such an action and availing himself of the presumptions and evidentiary short cuts authorized by that statute, it does not affect his common law right to prove in any appropriate action, if he can, that the alleged wrongdoer's culpable negligence caused the death. Thus, plaintiff's failure to proceed under the slayer statute does not bar him from showing in these actions, if he can, that Susie Newsom Lynch's culpable negligence proximately contributed to the deaths of the children and the Newsoms and that her estate cannot profit from those wrongs.
In vacating the judgments dismissing the actions and remanding them to the Superior Court for further proceedings in accord
Vacated and remanded.
COZORT and GREENE, JJ., concur.