Bultman v. Atlantic Coast Line R. Co.

• Decision Date: 10 March 1916
• Docket Number: 9322.
• Citation: 88 S.E. 279,103 S.C. 512
• Parties: BULTMAN ET AL. v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

88 S.E. 279

103 S.C. 512

BULTMAN ET AL. v. ATLANTIC COAST LINE R. CO.

No. 9322.

Supreme Court of South Carolina

March 10, 1916

Appeal from Common Pleas Circuit Court of Marion County; Geo. E Prince, Judge.

Action by F. A. Bultman and another against the Atlantic Coast Line Railroad Company. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

The exceptions were as follows:

Because his honor erred in granting an order of nonsuit.

(1) In that it appears from the evidence that the plaintiffs or at least one of them, were under a binding contract to purchase the premises in question before the injury to the same; that they could, under their legal rights, either take the premises subject to an abatement from the purchase price by reason of the injury, or pay the full purchase price and become the owners of the premises together with the injury and, having elected to pay the full purchase price and having by the terms of their deed become the owners of the injury and the real parties in interest, it was error on the part of the presiding judge to grant an order of nonsuit on the grounds set forth in defendant's motion.

(2) In that the history of all transactions in regard to the premises was set forth in precise terms in the complaint; and any defect of parties, if there were such defect, appeared upon the face thereof; and no objection having been taken by way of answer or demurrer, any defect of parties must be held to have been waived, and it was error on the part of his honor not to so hold and to grant relief on a motion for nonsuit.

(3) In that it appeared from the pleadings and the evidence that the cause of action, based upon injury to real property had been duly assigned to the plaintiffs, whereby they became the owners of the cause of action and the real parties in interest; and it was error on the part of his honor to hold that such cause of action was nonassignable, and on such holding to grant an order of nonsuit.

Lee & Moise, of Sumter, and M. C. Woods, of Marion, for appellants.

L. D. Lide, of Marion, and Henry E. Davis, of Florence, for respondent.

GAGE J.

Action against a railroad company for damages which were caused by a fire communicated to plaintiff's lands by a locomotive engine. The court directed a nonsuit, and the plaintiff has appealed.

The fire occurred in May, 1911. At that time Mullins had legal title to the land, but in April, 1911, she had contracted with Bultman to sell the same to him, and pursuant to that contract she conveyed the land to Bultman in November, 1911. And in December, 1911, Bultman conveyed an undivided one-third interest in the title to McCutchen. In the deed from Mullins to Bultman there was an assignment of the grantor's interest in the fire claim; and in the deed from Bultman to McCutchen there was a like assignment of a one-third interest in the fire claim.

The circuit court held: (1) That the proof of the foregoing facts did not constitute plaintiffs, or either of them, legal owners of the land, and the plaintiffs did not come within the terms of the statute (section 3226); and (2) that the fire claim was not assignable, and the plaintiffs took no interest under the deeds of assignment. And those are the two issues now to be determined.

The three exceptions will be reported, and they make the issues. They need not be considered in terms or by number.

1. We think there is no defect of parties plaintiff, in fact or apparent on the face of the complaint. If the plaintiffs may not recover, it is not because they were defective parties, but because the law confers no right upon them. That defense may be made by demurrer or by motion for a nonsuit. The circuit court was therefore right to consider the issue made by the defendant at the close of the plaintiffs' testimony, to wit, that the plaintiffs proved no cause of action.

2. It is true that section 3226 of the Code of Laws declares that the defendant--

"shall be responsible in damages to any person * * * whose * * * property may be injured by fire communicated by its locomotive engines."

Such liability existed at common law before the statute, and it exists, therefore, not "solely by virtue of this statute." The statute only supplemented the common-law liability, by making the liability not to depend on the negligence of the railroad corporation. If, therefore, torts to real property may generally be assigned--which question shall be considered hereinafter--there are no words in section 3226 to make the torts to real estate there referred to an exception to the rule. It is true section 3226, the fire statute, does confer a right of action on those persons "whose property may be injured by fire." There was such a right before the statute. Before the fire statute no person had a cause of action for any injury to land unless the person had a property in the land. The same is true under the fire statute.

The argument of the appellant is that because the statute is "highly penal" in its nature, the right conferred by it is only on him who was "owner" at the event, and Mayo v. Railroad, 40 S.C. 517, 19 S.E. 73, is cited for authority. We think there is no warrant to say the statute is "highly penal." The Legislature saw that there was a great peril to property from the constant emission of burning cinders from fast-moving locomotive engines. The Legislature, in the first instance, permitted the operation of such machines; and, in the second instance, it made the machines responsible for those results which experience showed were bound to follow the operation in spite of care. The fire statute does not use the word "owner." It would be a narrow and strained construction of the statute to conclude that he who was owner at the fire, and he alone, may prosecute the claim for damages from fire. We think the then owner of real estate might sue, and that the right survives to another than him, either by his assignment to another, or by an assignment under the operation of law.

3. If the plaintiffs' right to sue be rested solely on...