Southern Ry. Co v. Moore

• Citation: 155 S.E. 740
• Decision Date: 04 November 1930
• Docket Number: No. 13013.,13013.
• Parties: SOUTHERN RY. CO. v. MOORE.
• Court: United States State Supreme Court of South Carolina

155 S.E. 740

SOUTHERN RY. CO.
v.
MOORE.

No. 13013.

Supreme Court of South Carolina.

Nov. 4, 1930.

[Ed. Note.—For other definitions of "Ancillary, " see Words and Phrases.]

COTHRAN, J., dissenting.

Appeal from Common Pleas Circuit Court of Orangeburg County; S. W. G. Shipp, Judge.

Suit by R. R. Moore, administrator of the estate of Edwin A. Wagnon, deceased, against the Southern Railway Company. Defendant filed a petition to have letters issued to the administrator revoked. The probate judge passed order refusing to revoke the letters of administration, and on appeal to the court of common pleas, the probate court's order was affirmed, and the Railway Company appeals.

Affirmed.

Harley & Blatt, of Barnwell, for appellant.

W. C. Wolfe, of Orangeburg, and R. C. Holman, of Barnwell, for respondent.

GRAYDON, A. A. J.

Edwin A. Wagnon, who resided in Augusta, Ga., was killed at Branchville, S. C, by a railroad train, commonly known as the Carolina Special, operated by the appellant. At the time Wagnon was killed, he was the engineer on a train which ran between Branchville, S. C, and Augusta, Ga. He attempted to walk across the track of the main line going to his engine and was struck by the Carolina Special and killed instantly. He left a will op-pointing his wife executrix, and on the 13th day of April, 1927, the will was duly admitted to probate in the court of ordinary, Richmond county, Ga. The widow, Caroline E. Wagnon, duly qualified as executrix and was issued letters testamentary by the court. On or about June 8, 1927, R. R. Moore, at the request and solicitation of Mrs. Wagnon, filed his petition in the probate court of Orangeburg county praying that letters of administration be granted to him upon the estate of the said Wagnon, and on August 29, 1927, such letters were duly issued to Moore, the respondent herein.

[155 S.E. 741]

In August, 1927, Moore, acting in his representative capacity, commenced suit in the court of common pleas for Barnwell county against the Southern Railway Company for damages under the Federal Employers' Liability Act (45 USCA §§ 51-59) for the alleged wrongful death of Wagnon, the said action being brought for the benefit of the widow and children of Wagnon in accordance with the terms of the act and by agreement considered by all parties to be thereunder. (Cf. 26 Moore v. Southern Railway Company, Transcript of Record.)

The railroad company made answer to the complaint and, among other things, denied that Moore had the legal capacity to bring and maintain the action.

In addition to this denial, on September 12, 1927, the Southern Railway Company filed its petition in Orangeburg county before the probate court praying that the letters issued to Moore be revoked. A rule to show cause was issued, and the probate court, on September 20, 1927, heard the matter. On September 24, 1927, the probate judge of Orangeburg county passed an order discharging the rule and refusing to revoke the letters of administration. The company appealed to the court of common pleas of Orangeburg county, and upon the hearing of the appeal his honor, Judge S. w. G. Shipp, on October 7, 1927s passed a formal order dismissing the appeal and affirming the order of the probate court. The railroad company then appealed to this court from the order of Judge Shipp.

It is well settled in this state that when a nonresident of South Carolina is killed by reason of the wrongful act of some person or corporation within the state of South Carolina, letters of administration will be granted to a citizen of South Carolina for the purpose of bringing the suit for the wrongful death under Lord Campbell's Act. In re Estate of Mayo, 60 S. C. 401, 38 S. E. 634, 54 L. R. A. 660.

It has also been decided by the Supreme Court of this state that where a resident of South Carolina dies in another state and leaves a will which is admitted to probate, letters of administration granted in the state in which the party died are merely ancillary letters and are subject to and under the control of the principal letters granted in South Carolina. Wolfe v. Bank of Anderson, 123 S. C. 208, 116 S. E. 451.

In the Wolfe Case, supra, Lexlus Hinson was a resident of the county of Anderson. His wife died in Anderson, and he went to Augusta to place his two children with his wife's people. While in Augusta on this mission he contracted his fatal illness and died there. Administration was taken out of the ordinary court of Richmond county, Ga., and later a will was filed in the county of Anderson, S. C. Our court held that the letters of administration in Georgia were subservient to and subject to the letters in South Carolina.

From the reasoning of the above cases it seems that it has been settled in South Carolina that an administrator can be appointed solely for the purpose of bringing an action under Lord Campbell's Act; that where the principal administration is in one state any letters taken in another state are ancillary. Therefore, the letters of administration to Moore were merely ancillary letters and were properly and correctly issued.

As stated in the Mayo Case, above, the railroad company being merely a contingent debtor would have no right in any event to question the validity of the proceedings except as to a jurisdictional defect appearing on the face thereof. The railroad has no interest in the administration except to defeat the claim of the administrator. The interest of the railroad and the interest of the estate are absolutely contradictory.

This cause of action, having been brought and tried under the Federal Employers' Liability Act of Congress and the act amendatory thereto, the rules of law governing the same would be controlled by the federal decisions and the state decisions above cited are merely for the purpose of showing that under the South Carolina law Moore was an ancillary administrator of the estate. The federal rule is clear and conclusive on this question, and although the executor from Georgia might be able to maintain the suit in some jurisdictions, the general rule is that such executor could not maintain an action of this character in a foreign state in the absence of an enabling statute.

A Kentucky statute giving foreign administrators the right to sue for recovery of debts due the decedent was held to confer no capacity to sue for the wrongful death of such decedent, though such power might be given to a domiciliary administrator. Maysville Railway Transfer Co. v. Marvin (C. C. A.) 59 F. 91.

Under the New Jersey law the explicit right is given to foreign administrators to bring a suit under the provisions of what is commonly known as the New Jersey Death Act (2 Comp. St. 1910, pp. 1907-1911, §§ 7-9, as amended). See also J. B. & J. M. Cornell Co. v. Ward (C. C. A.) 168 F. 51.

In Ohio the right to sue in the name of a foreign administrator is expressly conferred by statute. Rev. St. Ohio, § 6133. Federal courts have held that the right of action for death of an employee under the federal Employers' Liability Act is not vested exclusively in a domiciliary administrator, but that such action might be maintained by an ancillary administrator. Anderson v. L. & N. Railroad Co. (C. C. A.) 210 F. 689. See also Dodge v. Town of North Hudson (C. C.) 188 F. 489.

The question here involved is not as to whether the executor from Georgia could sue and recover, but as to whether or not the South Carolina administrator can prosecute the suit. It is very doubtful whether the ex-

[155 S.E. 742]

ecutor from Georgia could qualify under the law of South Carolina and receive an appointment by the probate court of South Carolina. In re Estate of Neubert, 58 S. C. 469, 36 S. E. 908.

The statute provides that a nonresident cannot be appointed executor or administrator, and in addition that if such executor or administrator shall change his domicile beyond the limits of the state his letters shall be revoked. This by clear implication shows that Mrs. Wagnon could not have been appointed executor or administrator under the laws of South Carolina.

There is no question that the suit can be brought only by the personal representative of the deceased. American Railway Co. v. Didricksen, 227 U. S. 147, 33 S. Ct. 224, 57...