In Re Scarborough , 261 N.C. 565 ( 1964 )

Parker, J.,

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 seg., Vol. 2, Code of Laws of South Carolina, 1962. It would be absurd to say that Rotta was killed twice. S. 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, 215 Ky. 774, 286 S.W. 1071, 53 A.L.R. 1255; Chicago, R. I. P. R. Co., v. Schendel, 270 U.S. 611, 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 Okla. 344, 66 P. 2d 57.