Evans v. Morrow

68 S.E.2d 258 (1951)

234 N.C. 600

EVANS v. MORROW et at.

No. 528.

Supreme Court of North Carolina.

December 12, 1951.

*261 Frank H. Kennedy and Marcus T. Hickman, Charlotte, for Creed C. Morrow, administrator of Creed C. Morrow, Jr., appellant.

Smathers & Carpenter and William B. Webb, all of Charlotte, for plaintiff, Joe Evans, Jr., appellee.

ERVIN, Justice.

Where a sufficient equitable ground is shown, the superior court has power as a court of equity to enjoin a citizen of this State subject to its jurisdiction from prosecuting a judicial proceeding against another citizen in another State. Wierse v. Thomas, 145 N.C. 261, 59 S.E. 58, 15 L.R.A.,N.S., 1008, 122 Am.St.Rep. 446. As a general rule, however, citizens of this State are free to go into other states to pursue such remedies and secure such relief as may there be available. 28 Am.Jur., Injunctions, section 204. In consequence, the question on this appeal is whether the plaintiff showed a sufficient equity in the court below to deprive the appellant of a legal right commonly possessed by citizens. Boston & M. R. R. Co. v. Whitehead, 307 Mass. 106, 29 N.E.2d 916.

These propositions are well established in this field of equity jurisprudence:

1. A court of equity will not restrain a citizen from invoking the aid of the courts of another state simply because it may be somewhat more convenient or somewhat less expensive to his adversary to compel him to carry on his litigation at home. Carpenter Baggott & Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101, Ann.Cas.1915A, 332; *262 McWhorter v. Williams, 228 Ala. 632, 155 So. 309; Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383, 115 N.E. 554; Mason v. Harlow, 91 Kan. 807, 139 P. 384; Boston & M. R. R. Co. v. Whitehead, supra; Paramount Pictures v. Blumenthal, 256 App. Div. 756, 11 N.Y.S.2d 768; American Express Co. v. Fox, 135 Tenn. 489, 187 S.W. 1117, Ann.Cas.1918B, 1148.

2. A court of equity will not grant an injunction against an action in another state on the ground that the rules of practice and procedure in the state where the injunction is asked may differ from those which obtain in the state where the action is brought. Carpenter Baggott & Co. v. Hanes, supra; Standard Oil Co. of Louisiana v. Reddick, 202 Ark. 393, 150 S.W.2d 612; Bavuso v. Angwin, 166 Kan. 469, 201 P.2d 1057; Missouri-Kansas-Texas R. Co. v. Ball, 126 Kan. 745, 271 P. 313; New Orleans Brewing Co. v. Cahall, 188 La. 749, 178 So. 339, 115 A.L.R. 231; Lancaster v. Dunn, 153 La. 15, 95 So. 385; Boston & M. R. R. Co. v. Whitehead, supra; Tri-State Transit Co. of Louisiana v. Mondy, 194 Miss. 714, 12 So. 2d 920; E. J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161; Delaware, L. & W. R. Co. v. Ashelman, 300 Pa. 291, 150 A. 475, 69 A.L.R. 588; Chicago, M. & St. P. Ry. Co. v. Mc-Ginley, 175 Wis. 565, 185 N.W. 218.

3. A court of equity will not enjoin judicial proceedings in the court of another state through distrust of the competency of such court to do justice in cases within its jurisdiction. Carpenter Baggott & Co. v. Hanes, supra; Jones v. Hughes, 156 Iowa 684, 137 N.W. 1023, 42 L.R.A., N.S., 502; New Orleans Brewing Co. v. Cahall, supra; Missouri P. R. Co. v. Harden, 158 La. 889, 105 So. 2; Columbian Nat. Life Ins. Co. v. Cross, 298 Mass. 47, 9 N.W.2d 402; United States Fire Ins. Co. v. Fleenor, 179 Va. 268, 18 S.E.2d 901.

Under these rules, the first, second, and third grounds assigned for the issuance of the injunction in the case at bar do not disclose any equities entitling Evans to such relief.

There is no basis for the conclusion that the superior court of Mecklenburg County acquired prior jurisdiction of the wrongful death action when Evans sued Morrow individually in the North Carolina suit. All matters of substantive law relating to the wrongful death action are governed by the law of South Carolina, where the fatal accident occurred. Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. Under that law, nobody can sue to enforce a cause of action for death by wrongful act except the executor or administrator of the decedent. Code of Laws of South Carolina, 1942, section 412; Harrill v. South Carolina & Georgia Extension R. R. Co., 132 N.C. 655, 44 S.E. 109; In re Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660; Edgar v. Castello, 14 S.C. 20, 37 Am. Rep. 714; Heath v. Smyther, D.C., 19 F. Supp. 1020. For this reason, Evans conferred no power whatever upon the Superior Court of Mecklenburg County to try and determine the wrongful death action by suing Morrow as an individual for the injuries to the tractor-trailer combination and its cargo. Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; Bennett v. North Carolina R. R. Co., 159 N.C. 345, 74 S.E. 883. As the question does not arise on the present record, we express no opinion as to whether the injunction would have been proper if the North Carolina court had obtained jurisdiction of the wrongful death action prior to the South Carolina court.

There is likewise no foundation for the somewhat novel notion that it was the duty of Morrow as administrator to make himself a party defendant in the North Carolina suit, and to plead the cause of action for wrongful death as a counterclaim in it instead of bringing the South Carolina suit. This is plain when due heed is paid to the significant circumstances that Evans seeks to hold Morrow individually liable to him for the supposed negligence of Creed C. Morrow, Jr., under the family purpose rule and the respondeat superior doctrine, and that Morrow as administrator stands in the shoes of Creed C. Morrow, Jr. These things being true, Evans had an absolute legal right to pursue either of these courses at his election: (1) To sue Morrow, the individual, and Morrow, the administrator, *263 jointly; or (2) to sue Morrow, the individual, or Morrow, the administrator, separately. Hough v. Southern R.R. Co., 144 N.C. 692, 57 S.E. 469; Miller v. Straus, 38 Ga.App. 781, 145 S.E. 501; Martin v. Starr, 255 Ill.App. 189; 57 C.J.S., Master and Servant, § 579; 61 C.J.S., Motor Vehicles, § 500. Evans elected to sue Morrow, the individual, separately when he brought the North Carolina suit. This election was binding on Morrow, the administrator, who was powerless in law to compel Evans to sue him in his representative capacity. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Hough v. R.R., supra; 57 C.J.S., Master and Servant, § 613.

The statements in the judgment relating to the supposed intent of the administrator in bringing the South Carolina suit constitute factual inferences rather than legal conclusions. The inferences are non sequiturs of the facts found by the court. Moreover, they are immaterial to the controversy on the present record. Since the administrator exercised his legal right in an equitable manner, his supposed intent did not convert his innocent acts into inequitable conduct.

For the reasons given, the judgment is reversed, and the injunction is vacated.

Reversed.