Lorick v. Palmetto Nat. Bank

• Decision Date: 05 April 1907
• Citation: 57 S.E. 527,76 S.C. 500
• Parties: LORICK v. PALMETTO NAT. BANK OF COLUMBIA.
• Court: South Carolina Supreme Court

57 S.E. 527

76 S.C. 500

LORICK v. PALMETTO NAT. BANK OF COLUMBIA.

Supreme Court of South Carolina

April 5, 1907

Appeal from Common Pleas Circuit Court of Richland County; Gary Judge.

Action by Blanche O. Lorick against the Palmetto National Bank of Columbia. On death of plaintiff, the action was allowed to be continued in the name of the personal representative of the decedent, and defendant appeals. Affirmed.

Weston & Aycock, for appellant. Frank G. Tompkins, for respondent.

WOODS J.

This action was brought for damages alleged to have been sustained by Mrs. Blanche O. Lorick, because of the refusal of the defendant bank to pay a check issued by her against her deposit account. The cause was tried and a verdict rendered for the defendant, but on appeal to this court a new trial was ordered . 74 S.C. 185, 54 S.E. 206. In the meantime the plaintiff, Mrs. Lorick, died, and the circuit judge on motion ordered the cause to be continued in the name of E. A. Lorick, administrator of her estate. The defendant concedes there was no error in granting the order if the complaint can be construed as stating a cause of action ex contractu; but insists that the action was ex delicto, and did not survive to the personal representative of Mrs. Lorick.

1. The cause of action arose in July, 1903, when the check was refused. On March 7, 1905, section 2859 of the Civil Code of 1902 was amended so as to read: "Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property, shall survive both to and against the personal or real representative (as the case may be) of deceased persons, and the legal representative of insolvent persons, and defunct and insolvent corporations, any law or rule to the contrary, notwithstanding." 24 St. at Large p. 945. If the action is to be held strictly an action of tort, it would not survive unless the change made by the foregoing statute has a retroactive effect, embracing causes of action which had already arisen when it was enacted. There are no words in the statute indicating legislative intent that it should have a retroactive effect, and therefore regarded as an action of tort, the action would not survive. Ex parte Graham, 13 Rich. Law, 277; Curtis v Renneker, 34 S.C. 491, 13 S.E. 664. The pivotal question then is: Must the action be regarded so distinctly an action ex delicto...