Hall v. Southern Ry. Co

• Decision Date: 19 November 1908
• Court: North Carolina Supreme Court
• Parties: HALL. v. SOUTHERN RY. CO.

62 S.E. 899

149 N.C. 108

HALL.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Nov. 19, 1908.

1. Death (§ 39^*)—Time to Sue.

Under Revisal 1905, § 59, giving a right of action for negligent death, to be brought within a year thereafter by decedent's personal representative, where a foreign administrator who had commenced an action for negligent death thereafter qualified as a domestic administrator, and became a party to the action by amendment, but not until after a year from decedent's death, the action by him, as domestic administrator, was barred.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 54, 55; Dec. Dig. § 39.*]

2. Death (§ 31*)—Persons Entitled to Sue —Foreign Administrator.

A foreign administrator cannot sue in the state for the negligent death therein of his intestate by virtue of Revisal 1905, § 59, giving a right of action for negligent death to be brought by decedent's personal representative.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 38, 39; Dec. Dig. § 31.*]

Appeal from Superior Court, Person County; E. B. Jones, Judge.

Action for death by R. J. Hall, administrator, against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

B. S. Royster and E. P. Buford, for appellant.

W. B. Adams, A. B. Andrews, Jr., and P. H. Busbee, for appellee.

WALKER, J. This case was before us at the fall term, 1907, and is reported in 146 N. C. 345, 59 S. E. 879. We then dismissed the appeal of the defendant as having been improperly taken, but intimated that the plaintiff could not maintain this action. The plaintiff, who had qualified as administrator in the state of Virginia, brought this suit to recover damages for the negligent killing in this state of his intestate by the defendant. Since the decision in the former appeal the plaintiff has qualified as administrator in this state, and has become a party to this action and an amended complaint has been filed, stating the fact of his qualification, and further alleging that the death of the intestate was caused by the defendant's negligence; the allegations in this respect being similar to those of the first complaint. As the plaintiff did not qualify as administrator of the intestate in this state until after the commencement of this suit and the expiration of one year from the death of his intestate, he cannot maintain this action as such administrator. This is settled by the recent decision of the court in Gulledge v. Railway, 147 N. C. 234, 60 S. E. 1134, approving Best v. Kinston, 106 N. C. 205, 10 S. E. 997; Taylor v. Cranberry Co., 94 N, C. 526; Roberts v. Insurance Co., 118 N. C. 434, 24 S. E. 780; Tayloe v. Parker, 137 N. C. 418, 49 S. E. 921. See, also, Gulledge v. Railway (at this term, on rehearing), 62 S. E. 732, where the question is fully considered by Justice Brown, with a full citation of the authorities. The action by the plaintiff as administrator, qualified in this state, is deemed to have been commenced when he was made a party to the action as such and joined in the amended complaint. Hester v. Mullen, 107 N. C. 724, 12 S. E. 447. Indeed, the court should not have allowed the amendment, but the plaintiff, under his qualification as administrator in this state, should have been required to bring a separate and independent action.

The plaintiff contends, however, that he is entitled to recover in his capacity as administrator by virtue of his qualification in Virginia. We adhere to the opinion expressed in the former appeal, that, by virtue of his qualification in Virginia, the plaintiff cannot maintain this action. The statute under which this suit was brought is, of course, not penal, but remedial, in its nature, and we should give it such a construction as will effectuate the intention of the Legislature in enacting it. It creates a new cause of action not existing at the common law, and allows damages for the death of a person which is caused by the wrongful act, neglect, or default of another, but requires that the action shall be brought by the executor, administrator, or collector of the decedent. Can it be that this refers to a foreign administrator? We think not, but that the reference is to a representative appointed by a local court. Vance v. Railway, 138 N. C. 460, 50 S. E. 860; Hartness v. Pharr, 133 N. C. 566, 45 S. E. 901, 98 Am. St. Rep. 725. In the absence of any intimation to the contrary, this is the clear meaning of the statute, and we think that it has been regarded as the true construction of similar statutes by the courts of other states. In Neill v. Wilson, 146 N. C. 242, 59 S. E. 674, we held that Revisal 1905, § 59, by which a cause of action is given for the death of a person caused by a wrongful or negligent act, impresses upon the right of action the character of property for the purpose only of distribution here, under the provisions of the statute in cases of intestacy, and that the rights of the beneficiaries should be determined as of the time of the testator's death. It is no part of the estate, as assets for the purpose of paying debts. Hartness v. Pharr, supra.

It is hardly necessary to add much, if anything, to what we said in our former opinion, as we then considered the question fully, citing authorities which we think sustain our position. But, as the right of action arises under the statute of this state, where the death occurred, if the...