Hartness v. Pharr
| Decision Date | 01 December 1903 |
| Citation | 45 S.E. 901,133 N.C. 566 |
| Parties | HARTNESS v. PHARR et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Neal, Judge.
Action by R. B. Hartness against H. N. Pharr, as administrator, and others. From a judgment for plaintiff, defendants appeal. Affirmed.
W. F Harding, for appellants.
Jones & Tillett, for appellee.
This is an action brought by the plaintiff to recover a sum of money now in the hands of the defendant Pharr, as administrator of D. W. Hartness. The administrator brought a suit in the superior court of Mecklenburg county against the Atlanta & Charlotte Air Line Railway Company and the North Carolina Railroad Company to recover damages for the alleged negligent killing of his intestate, under our statute (Code, § 1498), and in that suit a verdict and judgment were rendered in his favor for $8,500. The amount of the judgment, with interest thereon, $170, was afterwards paid to him, and there now remains in his hands, after deducting the costs and expenses of administration, the sum of $5,071.25, less the sum of $75, already paid to the plaintiff on his share of the recovery, which balance will be further reduced by the amount of the costs and expenses of this action to be paid therefrom. The plaintiff is the father of D. W. Hartness, the intestate of the defendant Pharr, and the defendants other than the administrator are the brothers and sisters of the intestate. It further appears that the intestate was killed in this state, and at the time of his death he and his father and his brothers and sisters were all residents of South Carolina, and domiciled in that state. The latter were made parties because they claimed an interest in the fund adverse to the plaintiff. The plaintiff duly qualified as administrator of D. W. Hartness in South Carolina, and afterwards the defendant Pharr qualified as administrator in this state for the purpose, it is stated in the "case," of bringing said suit to recover damages for the negligent killing of his intestate. The case was heard in the court below upon the complaint, answers of the defendants, and a demurrer to the answers, and the foregoing facts are taken from the pleadings, the allegations of the complaint having been admitted, and the demurrer filed to the special matters set up by way of defense. The defendants annexed a copy of the statute of South Carolina (Gen. Civ. St. 1902) concerning the distribution of intestates' estates, which is as follows: The plaintiff contends that under the facts of the case the distribution should be made according to the laws of this state, and that, therefore, he is entitled to the whole fund as the sole distributee or next of kin of the intestate. The defendants, on the contrary, insist that the fund should be administered or distributed under the laws of South Carolina, and that, if this is done, the plaintiff will be entitled to one-tenth only, or a child's share, and the balance will go to the defendants who are the brothers and sisters of the intestate. The exact contention of the defendants, as we understand it, is as follows: (1) The defendant Pharr, having qualified as administrator in North Carolina subsequently to the appointment and qualification of the plaintiff as administrator in South Carolina, his administration is ancillary to the plaintiff's administration in the latter state, and it is the duty of the defendant Pharr to pay over to the plaintiff, as the original administrator of the deceased, the funds in his hands, in order that the original administrator may complete his administration according to the laws of South Carolina, wherein the deceased had his residence at the time of his death. This having been done, the fund once reaching the hands of the South Carolina administrator would be distributed among the next of kin according to the laws of that state, and the rights of the parties would be protected. (2) The other view the defendants present is that, if the defendant Pharr, administrator, must distribute the funds in his hands among the next of kin, and thus close his administration, the fund should be distributed as would other personal property in case of intestacy (Code, § 1500); that is, according to the laws of the state wherein the deceased had his residence and domicile at the time of his death. As between these two opposite claims, we are with the plaintiff, because we believe that upon principle and authority he is entitled to receive the entire fund from the defendant Pharr, subject, of course, to such proper deductions as the law makes in favor of the administrator for costs and expenses, or on account of any payment heretofore made to the plaintiff out of any money in his hands. It must be admitted that at common law no action would lie to recover damages for the death of a person, though caused by the negligent or other wrongful act of another, and the cause of action upon which a recovery was had in a suit against the railroad companies by Pharr, administrator, was not, therefore, known to the common law, and is solely a creature of statute. The first innovation upon or amendment of the common law in this respect was brought about by the enactment of 9 & 10 Vict. c. 93, commonly called "Lord Campbell's Act," because he was its author, and it was mainly through his efforts that it was adopted. It was but one among the many wise and humane reforms of the law attributed to that eminent jurist, who enjoyed the rare distinction and honor of having successively been Chief Justice and Chancellor of England. By...
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