Bennett v. Spartanburg Ry., Gas & Elec. Co.

• Decision Date: 31 March 1914
• Citation: 81 S.E. 189,97 S.C. 27
• Parties: BENNETT, CLERK OF COURT, v. SPARTANBURG RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

81 S.E. 189

97 S.C. 27

BENNETT, CLERK OF COURT, v. SPARTANBURG RY., GAS & ELECTRIC CO.

Supreme Court of South Carolina

March 31, 1914

Appeal from Common Pleas Circuit Court, Spartanburg County; R. W Memminger, Judge.

"To be officially reported."

Action by N. L. Bennett, Clerk of Court, as administrator of the estate of Lucy Gales, deceased, against the Spartanburg Railway, Gas & Electric Company. From a judgment overruling its demurrer, defendant appeals. Reversed.

Sanders & De Pass, of Spartanburg, for appellant.

Stanyarne Wilson, of Richmond, Va., for respondent.

HYDRICK J.

The plaintiff set out two causes of action in his complaint. In the first he alleges that in the fall of 1908 his intestate was negligently injured by the defendant, in consequence of which she suffered in body and mind and was partially incapacitated, until December, 1911, when she died. On account of her injury, he asks for $5,000 damages. In the second cause of action he alleges the same injury, and that it caused her death, and prays judgment for $10,000 damages for the benefit of her husband and children.

The defendant demurred to the complaint on the ground that two causes of action were improperly united therein. The demurrer was overruled, and defendant appealed on the sole ground that the court erred in not holding that two separate and distinct causes of action were improperly united in the complaint.

At the common law, the first cause of action would have died with the intestate. But it was made to survive to her administrator by the statute, which was passed in 1905 (24 Stat. 945, incorporated as section 3963, vol. 1, Code 1912), which provides, among other things, that causes of action for and in respect to "any and all injuries to the person" shall survive to the personal representative of the deceased. Also, at the common law, there was no right of action for an injury causing death. The statute familiarly known as Lord Campbell's Act (which, with some amendments, is incorporated in the Code of 1912, vol. 1, §§ 3955, 3956) gave such a right of action. This was the creation of a new right of action, where none existed before. Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L. R. A. 660. The statute provides that this action shall be for the benefit of the wife or husband and children of the deceased or, if there be none such, then for the benefit of the other persons therein mentioned, and that it shall be brought by or in the name of the executor or administrator of the deceased. The damages recoverable are such as the jury may think proportioned to the injury resulting from the death to the beneficiaries named, and the amount recovered shall be divided among them.

Now the only question presented by this appeal is: Can these two causes of action be joined in the same complaint? Section 218 of the Code of Civil Procedure provides what causes of action may be united in the same complaint. The first subdivision of that section permits the joinder of several causes of action in the same complaint, where they arise out of the same transaction. Unquestionably both of...