Pearson v. Norfolk & W. Ry. Co.

• Decision Date: 06 February 1923
• Citation: 286 F. 429
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: PEARSON v. NORFOLK & W. RY. CO.

286 F. 429

PEARSON v. NORFOLK & W. RY. CO.

United States District Court, W.D. Virginia.

February 6, 1923

Wm. H Werth, of Tazewell, Va., and Wm. A. Stuart, of Abingdon, Va for plaintiff.

Staples Cocke & Hazlegrove, of Roanoke, Va., for defendant.

McDOWELL District Judge.

The declaration in this case begins as follows: 'A. C Pearson, administrator of the estate of Ambrose Pearson, deceased, plaintiff, comes and says,' etc. The plaintiff is alleged to be a citizen of North Carolina; the defendant to be a corporation created under the laws of Virginia, having its principal office in this district. The action is for the alleged negligent killing in West Virginia of Ambrose Pearson by the defendant's employees. The West Virginia wrongful death statute reads as follows:

'Action for Wrongful Death.-- Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.

'Same; Party Plaintiff, Damages, Distribution; Limitation.-- Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased: Provided that every such action shall be commenced within two years after the death of such deceased person.'

Code 1916, Secs. 5 and 6, c. 103 (Code 1913, c. 103, Secs. 5, 6 (secs. 4409, 4410)).

Desiring to raise a question as to the right of a foreign administrator to maintain this action, counsel for the defendant have demurred on the ground that the declaration does not allege that the plaintiff had been granted letters of administration by a Virginia court. In cases in which the rule forbidding foreign personal representatives to sue applies, the general rule seems to be that the want of local letters cannot be raised by demurrer, unless the plaintiff's pleading shows on its face that the plaintiff is a representative by foreign appointment only. 24 Corpus Juris, 1136; 8 Ency.Pl. & Pr. 713; 8 Standard Procedure, 751, 752; Childress v. Emory, 8 Wheat. 642, 671, 5 L.Ed. 705; Kane v. Paul, 14 Pet. 33, 41, 10 L.Ed. 341; Noonan v. Bradley, 9 Wall. 394, 400, 401, 19 L.Ed. 757. I know of no Virginia ruling on the point. However, the technically proper way of making the objection need not now be decided. The plaintiff by counsel admits that he has been appointed administrator only by the probate court of the county in North Carolina in which his intestate was domiciled at the time of his death, and waives objection to the method chosen by the defendant for raising the question of the right of the plaintiff to sue. The defendant on its part conceded that the representative appointed by the court of the decedent's domicile is the personal representative intended by the West Virginia statute.

In this state there is no statute giving foreign representatives a right to sue, and the rule that a foreign representative may not sue in the courts of this state to recover assets of his decedent's estate for administration remains in full force. Dickinson v. McCraw, 4 Rand.(Va.) 158, 160; Andrews v. Avory, 14 Grat.(Va.) 229, 239, 73 Am.Dec. 355; Fugate v. Moore, 86 Va. 1045, 1047, 11 S.E. 1063, 19 Am.St.Rep. 926. However, I can think of no reason why this rule should apply to the case at bar. The only even passably good reason for the rule is the protection of possible local creditors of a decedent. In 1 Robinson's Practice (new) p. 161 (a Virginia authority), it is said:

'For the present it will suffice to state the reason of the rule which is, that a recovery under a title derived from a foreign grant of administration would withdraw the effects from the operation of the laws to which they are properly subject, and commit them to the administration of persons in no wise amenable to those laws, so that instead of being protected in their rights by the power of their own

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