In Re Scarborough

135 S.E.2d 529 (1964)

261 N.C. 565

In the Matter of W. H. SCARBOROUGH, Ancillary Administrator of the Estate of Velma Z. Rotta, Deceased.

No. 245.

Supreme Court of North Carolina.

April 8, 1964.

*530 Craighill, Rendleman & Clarkson, Charlotte, for respondent appellant.

Carpenter, Webb & Golding, Charlotte, for petitioner appellee.

RODMAN, Justice.

This is the factual situation on which the parties relied to support their respective positions: Rotta died at a motel in Laurens, South Carolina. She was on a journey from her home in Michigan to Florida. She had never resided in North Carolina, and had no heirs or next of kin in this State. Domiciliary administration was in Michigan. Jack Long was appointed as Ancillary Administrator in South Carolina. Scarborough asserts Rotta's death was the result of Martin's negligence. The asserted right of action, accruing because of Martin's tort, is the only asset with a situs in this State.

Long, the South Carolina Administrator, instituted an action in that State against John Hall, Supreme Propane Gas Company, Inc., and Federated Mutual Hardware Insurance Company, a liability insurer, to recover damages because of their alleged negligence which caused Rotta's death. Defendants Gas and Insurance Companies paid Long, as Administrator, $12,567.50. In consideration of this payment, Long executed a writing entitled, "Covenant Not to Sue."

Martin is an Alabama corporation. It has no plant or sales offices in North Carolina. It does have a salesman who lives in Charlotte. He devotes approximately 60 per cent of his time to making sales in North Carolina, and about 40 per cent of his time to making sales in South Carolina.

The authority to appoint an administrator in this State is vested in the Clerk of the Superior Court. G.S. § 28-1. He cannot appoint unless the facts on which the applicant relies meet the test of one of the five subsections of the statute. The validity of Scarborough's appointment depends on the proper interpretation of G.S. § 28-1(3) which reads: "Where the decedent, not being domiciled in this State, died out of the State, leaving assets in the county of such clerk, or assets of such decedent thereafter come into the county of such clerk."

Does the quoted language authorize the appointment of an administrator when deceased was not a resident of this State, did not die in this State, and had no assets in this State, other than a right of action for wrongful death occurring outside the State but which can be enforced in the State because of the presence of the tort-feasor?

Liability for negligence resulting in personal injury or death is determined by the law of the state where the tort is committed. Shaw v. Lee, 258 N.C. 609, 129 S.E.2d 288. Under the laws of South Carolina, one whose negligence causes the death of another is liable for the resulting damage. The action must be brought by the personal representative of the deceased. S.C.Code § 10-1951, 1952; Evans v. Morrow, 234 N.C. 600, 68 S.E.2d 258; Bailes v. Southern Railway, et al., 227 S.C. 176, 87 S.E.2d 481.

The right of action which accrues because of injury or death resulting from the negligence of another is transitory. Fulcher v. Smith, 249 N.C. 645, 107 S.E.2d 68; Howle v. Twin States Express, Inc., 237 N.C. 667, 75 S.E.2d 732; Rodwell v. Camel City Coach Company, 205 N.C. 292, 171 S.E. 100; Ledford v. Western Union Telegraph Company, 179 N.C. 63, 101 S.E. 533; Harrill v. South Carolina & Georgia Extension R. R, 132 N.C. 655, 44 S.E. 109; 14 Am.Jur. 425.

While the right of action is transitory, it can only be maintained by an administrator appointed by our courts. Brauff *531 v. Commissioner of Revenue, 251 N.C. 452, 111 S.E.2d 620; Cannon v. Cannon, 228 N.C. 211, 45 S.E.2d 34; Monfils v. Hazlewood, 218 N.C. 215, 10 S.E.2d 673.

This court held in Vance v. Southern R. R. Co., 138 N.C. 460, 50 S.E. 860, that where death occurred as a result of a tort committed here the cause of action given by our statutes was an asset within the meaning of G.S. § 28-2. The conclusion then reached was reiterated a few years later in Fann v. North Carolina R. R., 155 N.C. 136, 71 S.E. 81. Hoke, J. (later C. J.) there said, "In the present case the deceased was killed in Greensboro, N. C., where he resided at the time and had his domicile. The cause of action is of itself assets." (Emphasis supplied.) This statement of the law is recognized as correct elsewhere. Van Dusen v. Sturm, 257 App.Div. 914, 12 N.Y.S.2d 133; Lund v. City of Seattle, 163 Wash. 254, 1 P.2d 301; Darrah v. Foster, Mo., 355 S.W.2d 24; McCarron v. New York Cent. R. R. Co., 239 Mass. 64, 131 N.E. 478, Annotation: Ann.Cas.1917C 1217.

Appellee points out that our statute not only requires the existence of assets but the existence of assets in the county of the clerk making the appointment. Hence it argues that there were no assets in Mecklenburg County which would invest the clerk of that county with the authority to appoint an administrator. This contention overlooks the fact that Martin was doing business in North Carolina. Its agent resided in Mecklenburg County. Denny, J. (now C. J.), speaking with respect to the situs of intangible assets, said in Cannon v. Cannon, supra, "Even so, a simple debt due a decedent's estate, which is being administered in a foreign jurisdiction, constitutes a sufficient asset upon which to base a proceeding for the appointment of an ancillary administrator. In re Warburg's Estate, 129 Misc. 832, 223 N.Y.S. 780; Hensley v. Rich, 191 Ind. 294, 132 N.E. 632, 18 A.L.R. 1118; Vogel v. New York Life Ins. Co., 5 Cir., 55 F.2d 205. The debt is an asset where the debtor resides, even though a note has been given therefor, without regard to the place where the note is held or where it is payable."

The asset (right of action for wrongful death) has a situs in the county in which personal service can be had on the tort-feasor. Morefield v. Harris, 126 N.C. 626, 36 S.E. 125; Shields v. Union Cent. Life Insurance Company, 119 N.C. 380, 25 S.E. 951.

The rule is aptly stated by the Court of Civil Appeals of Texas in Lancaster & Wallace v. Sexton, 245 S.W. 958, an action for damages for wrongful death. The Court said: "A valid claim for damages, based upon transactions of this character, is a chose in action; it is a debt resting upon an obligation which the law imposes on a wrongdoer to pay adequate compensation to an injured party, or to his representative. Like other debts not evidenced by some form of writing, it follows the person of the debtor, and its payment may be enforced in any forum where the debtor may be found. The presumption is that as long as the debt is unpaid the debtor has in his possession funds, or money, which he should deliver upon demand to his creditor. That obligation accompanies the debtor wherever he may go."

The fact that a personal representative could obtain a judgment in personam on the cause of action which arose in South Carolina was sufficient to authorize the Clerk of the Superior Court of Mecklenburg County to appoint an ancillary administrator. The conclusion we reach accords with the weight of authority elsewhere. Berry v. Rutland R. Co., 103 Vt. 388, 154 A. 671; State ex rel. Chicago, B. & Q. R. Co. v. Probate Court, 149 Minn. 464, 184 N.W. 43; Peterson v. Chicago, B. & Q. Ry. Co., 187 Minn. 228, 244 N.W. 823; In re Waits' Estate, 23 Cal. 2d 676, 146 P.2d 5; De Valle Da Costa v. Southern Pac. Co., 1 Cir., 160 F. 216; 33 C.J.S. Executors and Administrators § 17, p. 894; 21 Am.Jur. 396.

On the motion to recall for cancelation the letters of administration issued to Scarborough, *532 the court was not required to decide whether he could succeed in his action. Questions relating to tort-feasor's negligence, proximate cause, contributory negligence of deceased, statutes of limitation, settlement, or assignment of the asserted cause of action are all properly determinable in a trial on the merits. Because the probate court cannot decide these questions, the assertion that they will prove an insurmountable barrier to a recovery does not render the court powerless to make an appointment.

Reversed.

PARKER, Justice (concurring in result).

In my opinion, the appointment of an ancillary administrator in South Carolina and the institution of a suit in that State against John Hall, Supreme Propane Gas Company, Inc., and Federated Mutual Hardware Insurance Company, a liability insurer, to recover damages because of their alleged negligence causing Rotta's death in South Carolina, and that defendants Gas and Insurance Companies paid Long as ancillary administrator $12,567.50, and in consideration of this payment Long executed a writing entitled, "Covenant Not to Sue," does not preclude the probate court in Mecklenburg County from appointing Scarborough as ancillary administrator of the estate of Velma Z. Rotta to institute an action in this State against Martin Stamping and Stove Company for Rotta's alleged wrongful death.

It seems to me indubitable that the action for recovery in this State must be governed by the South Carolina statute on the subject, which is Chapter 23, "Death by Wrongful Act and Lynching," Art. 1, sec. 10-1951 et seq., Vol. 2, Code of Laws of South Carolina, 1962. It would be absurd to say that Rotta was killed twice. State v. Scates, 50 N.C. 420. Martin Stamping and Stove Company by appropriate pleadings can raise all matters of defense contended for by it, one of which is the interesting question as to whether there can be more than one recovery for an alleged wrongful death under the same South Carolina statute. Rotta died in South Carolina. Louisville & N. R. Co. v. Jones, Adm'r, 215 Ky. 774, 286 S.W. 1071, 53 A.L.R. 1255; Chicago, R. I. & P. R. Co. v. Schendel, 270 U.S. 611, 46 S. Ct. 420, 70 L. Ed. 757, 53 A.L.R. 1265, with annotation in A.L.R. beginning on p. 1275; Moore v. Omaha Warehouse Co., 106 Neb. 116, 182 N.W. 597, 26 A.L.R. 980, and annotation in A.L.R. thereto beginning on p. 984; State ex rel. Chicago, B. & Q. R. Co. v. Probate Court, 149 Minn. 464, 184 N.W. 43; McCoubrey v. Pure Oil Co., 179 Okl. 344, 66 P.2d 57.