McDaniel v. McDaniel

• Decision Date: 04 December 1963
• Docket Number: No. 18131,18131
• Citation: 133 S.E.2d 809,243 S.C. 286
• Court: South Carolina Supreme Court
• Parties: Beecher McDANIEL, as Administrator of the Estate of Carlotta McDaniel, Appellant, v. Thomas F. McDANIEL, Respondent.

Page 809

133 S.E.2d 809

243 S.C. 286

Beecher McDANIEL, as Administrator of the Estate of Carlotta

McDaniel, Appellant, v. Thomas F. McDANIEL, Respondent.

No. 18131.

Supreme Court of South Carolina.

Dec. 4, 1963.

Gasque, Seals & Gasque, Marion, for appellant.

Allen L. Ray, Suggs & McCutcheon, Conway, for respondent.

MOSS, Justice.

This action was instituted by Beecher McDaniel, as administrator of the estate of Carlotta McDaniel, the appellant herein, against Thomas F. McDaniel, the respondent herein, to recover damages for the alleged wrongful death of Carlotta McDaniel. The action is brought under the wrongful death statute of the State of Georgia. The appellant asserts that he has the right to bring this action pursuant to the procedure set forth in Section 10-1951, et seq., 1952 Code of Laws of South Carolina, for the benefit of Timothy McDaniel, a minor son of appellant's intestate.

The respondent made a motion based upon the pleadings in this case and upon the laws and statutes of the State of Georgia to dismiss this action upon the ground that the appellant, as administrator of the estate of Carlotta McDaniel, had no right or authority to institute or prosecute this action against the respondent for her wrongful death.

The matter came on to be heard before Honorable G. Badger Baker, Resident Judge of the Twelfth Circuit, upon a written stipulation submitting the aforesaid legal issue to him for determination. Thereafter, the trial Judge issued his order dismissing the action and holding that such could not be maintained by the appellant as administrator, and that an action under the wrongful death statute of the State of Georgia could only be brought in the Courts of South Carolina by the beneficiaries designated in such statute.

It appears from a stipulation entered into by the parties to this action that for sometime prior to August 14, 1959, Thomas F. McDaniel and Carlotta McDaniel were husband and wife and resided in Jacksonville, Florida. There was one child born of this marriage, Timothy McDaniel, a son, for whose benefit this action was brought. It appears that on August 14, 1959, Thomas F. McDaniel, Carlotta McDaniel and Timothy McDaniel were traveling by automobile from Jacksonville, Florida, to the State of South Carolina. The automobile in which they were traveling was owned and was being operated by Thomas F. McDaniel. It is agreed that while the automobile was being so operated that such was involved in an accident near the Town of Darien, Georgia. The said Carlotta McDaniel died intestate, in the State of Georgia, as a result of injuries received by her in said accident. She left surviving her husband, Thomas F. McDaniel, the respondent herein, and her minor son, Timothy McDaniel, who resides with the respondent.

It is further agreed that Beecher McDaniel Was, on January 28, 1961, appointed administrator of the estate of Carlotta McDaniel, for the purpose of instituting an action in South Carolina for the alleged wrongful death and homicide of Carlotta McDaniel. There has been no administration on the estate of Carlotta McDaniel in either of the States of Florida or Georgia.

The wrongful death statute of the State of Georgia, Section 105-1306, Georgia Code of 1933, at the time of the death of appellant's intestate, was as follows:

'Homicide of wife or mother.--The husband and/or child or children may recover for the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with the right of survivorship as to said suit, if either shall die pending the action. (Acts 1887, pp. 43, 45; 1939, p. 233.)'

Under Section 10-1952 of our Code of Laws, it is provided that where the death of a person is caused by the wrongful act, neglect or default of another that '[e]very such action shall be brought by or in the name of the executor or administrator of such person.'

Since this action is brought under the wrongful death statute of the State of Georgia, above quoted, the substantive rights and liabilities of the parties are to be determined in accordance with the law of Georgia, the lex loci. Procedural matters are to be determined in accordance with the law of South Carolina, the lex fori. Nix v. English, 254 N.C. 414, 119 S.E.2d 220; Bussey v. C. & W. C. Ry. Co., 73 S.C. 215, 53 S.E. 165; Dennis v. Atlantic Coast Line Ry. Co., 70 S.C. 254, 49 S.E. 869; Rauton v. Pullman Company, 183 S.C. 495, 191 S.E. 416.

The issue or question here presented for determination is whether the foregoing section of the Georgia Code, providing that the husband and children of the deceased 'shall sue jointly and not separately', and which constitutes the lex loci of the alleged wrongful death in question, controls, or whether under the provisions of Section 10-1952 of our Code of Laws, which constitutes the lex fori, and which vests the right of action in an administrator, he may sue. The trial Judge held that the present action cannot be maintained by the appellant pursuant to Section 10-1952 of our Code based on her alleged wrongful death, but that such action could only be maintained under and pursuant to the above quoted Georgia Statute. In other words, he held that the provisions of the Georgia Statute are substantive and the action for the wrongful death of Carlotta McDaniel must be maintained by the beneficiaries named therein.

The appellant relies strongly upon the decision of this Court in Bussey v. C. & W. C. Ry. Co., 73 S.C. 215, 53 S.E. 165, to sustain his position that who shall sue under the Georgia statute is a matter of procedure to be governed by the lex fori rather than a matter of substance to be governed by the lex loci. In the Bussey case, decided in 1906, it appears that a husband and father had been killed. The Georgia statute cited in such, provides that 'A widow, or if no widow, a child or children, may recover for the homicide of the husband or parent.' The action in question had been brought by the widow personally. The defendant demurred on the ground that the action should have been brought by the administrator of the deceased as plaintiff and not by his widow in her individual capacity. This Court affirmed an order of the lower Court sustaining a demurrer to the complaint, saying:

'The underlying question is whether the provision in the Georgia statute, relative to parties authorized to bring the action, pertains to the right or to the remedy. If it was intended to affect the right of recovery, then the action should conform to such requirement; while, on the other hand, if it should be regarded as remedial, the courts of this state will apply the mode of procedure prevailing in this state.

'Our construction of the Georgia statute is that its intention was to designate the beneficiaries, and not to prescribe the mode of procedure. If the statute of Georgia had provided as a consideration...