Hall v. Southern Ry. Co.

• Decision Date: 11 December 1907
• Parties: HALL v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

59 S.E. 879

146 N.C. 345

HALL v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 11, 1907

Appeal from Superior Court, Person County; Councill, Judge.

Action for wrongful death by R. J. Hall, administrator, against the Southern Railway Company. From an order overruling a motion to dismiss, defendant appeals. Appeal dismissed.

In the absence of evidence as to the common law in another state, it will be presumed to be the same as that of the situs of the action.

The plaintiff alleges in his complaint that his intestate, who was a flagman in the defendant's employ, was killed by the negligence of the defendant on November 11, 1905, in the county of Caswell, which is in this state, and that, at the time of his death, he was resident and domiciled in Danville state of Virginia. That he was appointed administrator of the intestate in Virginia. This action was brought in the superior court of the county of Person. The plaintiff is now and was at time of his appointment as administrator, resident and domiciled in the state of Virginia. The defendant in its answer denied the material allegations of the complaint. At the trial, the defendant moved to dismiss the action and demurred ore tenus, upon the grounds: (1) That the plaintiff could not sue in the courts of this state; (2) that he had no right to maintain this action. The court upon consideration overruled the motion and demurrer ore tenus, and the defendant appealed.

F. H Busbee, W. D. Merrit, and P. H. Busbee, for appellant.

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

WALKER J.

The statute of this state (Revisal 1905, § 5, subsec. 2) positively forbids letters of administration to be issued to a nonresident of the state, and it is to be inferred from this enactment, as well as from the course of decision in this court, that the policy of the law is well established to the effect that a nonresident administrator cannot sue in the courts of this state. Butts' Adm'rs v. Price, 1 N. C. 289; Anonymous, 2 N.C. 355; Helme v. Sanders, 10 N.C. 563; Leake v. Gilchrist, 13 N.C. 73; Smith v. Munroe, 23 N.C. 345; Morefield v. Harris, 126 N.C. 626, 36 S.E. 125; Scott v. Lumber Co., 144 N.C. 44, 56 S.E. 548. A nonresident, who happens also to be an administrator appointed by a court in the state of his and his intestate's residence and domicile, may sometimes maintain an action in his own name in another state, as, for instance, to recover property, possession of which he had acquired as administrator, and which had afterwards been taken from him; but he sues, not as administrator, but in his individual capacity upon his own right of possession. Leake v. Gilchrist, supra. There are, perhaps, other examples of a like kind. We have held, for instance, that, when services are rendered by an attorney at law to an administrator or executor, the latter is liable, upon a quantum meruit, in his individual, and not in his official, capacity. McKay v. Royal, 52 N.C. 426. See, also, Tyson v. Walston, 83 N.C. 90; Hailey v. Wheeler, 49 N.C. 159; Beaty v. Gingles, 53 N.C. 302; Kessler v. Hall, 64 N.C. 60; Kerchner v. McRae, 80 N.C. 219. Where he must sue in his representative capacity and recover only by virtue of his office, a foreign administrator cannot sue in our courts. Original or ancillary letters of administration must be taken out here. The distinction between his right to sue as administrator, when the cause of action belongs to him only in his representative capacity, and his right to sue when it belongs to him as his own, though acquired originally by reason of his being administrator, runs clearly through all the authorities.

The plaintiff contends that he has the right to sue here upon the cause of action alleged in his complaint, because, while he qualified as administrator in Virginia, he is, under our statute, but a trustee of an express trust, and must hold the proceeds of his recovery in trust for those designated in the statute as the beneficiaries of the fund. We cannot agree with the learned counsel, who so ably and ingeniously argued for the plaintiff, in this view of our statute. We think it was manifestly intended by the statute that the administrator designated by it to sue for the damages, in case of a death caused by negligence or other wrongful act, should be one appointed by a court of this state in the proper county. The act provides as follows: "Whenever the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amount in law to a felony. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy." Revisal 1905, § 59. Can any one read that section and conclude that the Legislature intended that the action which is authorized by it could be brought by a foreign administrator? The fair presumption would be that, when the act refers to an administrator, it means, nothing else appearing, a domestic administrator, especially when the decisions of the highest court of the state had uniformly established that a nonresident administrator cannot sue in the courts of this state. The statute requires the suit to be brought by the administrator in his official, and not in his private or individual, capacity. He must sue as administrator. Can words convey that idea any more distinctly and clearly than those used in the section quoted? We have virtually held, in two cases, that this is the true construction of the act. Hartness v. Pharr, 133 N.C. 566, 45 S.E. 901, 98 Am. St. Rep. 725, and Vance v. Railway, 138 N.C. 460, 50 S.E. 860. In the case last cited we said: "When it was provided that the action should be brought by the administrator, it was intended that he should be appointed by the clerk of the county where the death occurred, if the decedent was a nonresident domiciled in another state and without assets situated here." But in Vance v. Railway, supra, we also cited with approval the case of Brown's Adm'r v. Railroad, 97 Ky. 228, 30 S.W. 640, as follows: "Within the line of the general statutes on this subject, defining when, under what circumstances, and what courts shall have power to appoint an administrator for a nonresident decedent, it may be that the matter sued for in this action is not a debt or demand belonging to or owned by the decedent at the time of his death. Neither is it strictly personal estate of the decedent. But beyond these general statutes, we think the particular statute applicable to cases of this kind, wherein the right of action is expressly given to an administrator, necessarily implies the right to have an administrator appointed by the local courts for this purpose alone, if there be no other necessity or right or authority for such an appointment. And we deem the court of the county where the injury was done and where the man died the proper court to entertain such jurisdiction." The case of In re Estate of Mayo, 60 S.C. 415, 38 S.E. 634, 54 L. R. A. 660, was cited with approval, as follows: "The statute is remedial and should be liberally construed so as to accomplish its object. We therefore hold that the statute creating a right of action which cannot be enforced except by an administrator, and providing for a special distribution by said administrator of the proceeds, will warrant the probate court of the county where the intestate was killed in granting administration for the purpose of enforcing such right of action. This view is well supported by authority in other jurisdictions." But we think that the decision in Hartness v. Pharr, supra, is more to the point. We held in that case that an administrator appointed in this state should bring the action and...