Bussey v. Charleston & W. C. R. Co.

• Decision Date: 30 January 1906
• Citation: 53 S.E. 165,73 S.C. 215
• Parties: BUSSEY v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

53 S.E. 165

73 S.C. 215

BUSSEY v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

January 30, 1906

Appeal from Common Pleas Circuit Court of Edgefield County; Gage Judge.

Action by Elizabeth J. Bussey against the Charleston & Western Carolina Railway Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

J. Wm Thurmond and Jas. H. Tillman, for appellant. S. J. Simpson and Sheppard Bros., for respondent.

GARY A. J.

This is an appeal from an order sustaining a demurrer to the complaint upon a cause of action that arose in Georgia, on the ground that there was a defect of parties, in that the action should have been brought by the administrator of the deceased as plaintiff, and not by his widow in her individual capacity. The complaint alleges that the statute of Georgia generally known as "Lord Campbell's Act" (Code 1895, § 3828), provides that: "A widow, or if no widow a child or children, may recover for the homicide of the husband or parent; and if suit be brought by the widow or children, and the former, or one of the latter, dies pending the action, the same shall survive in the first place to the children. ***" Section 2852 of the Civil Code of Laws of South Carolina of 1902 contains the provision that the suit "shall be brought by or in the name of the executor or administrator of such person."

The underlying question is whether the provision in the Georgia statute, relative to parties authorized to bring the action pertains to the right or to the remedy. If it was intended to affect the right of recovery, then the action should conform to such requirement; while, on the other hand, if it should be regarded as remedial, the courts of this state will apply the mode of procedure prevailing in this state. Our construction of the Georgia statute is that its intention was to designate the beneficiaries, and not to prescribe the mode of procedure. If the statute of Georgia had provided as a consideration precedent to a recovery of damages that the action should be brought in the name of the widow, such provision would have formed part of the right instead of the remedy, and, when an action was brought in another state, it would have to be instituted in her name. If the plaintiff is required to conform her pleadings to the laws of this state, it will not affect her substantial rights. No burden will thereby be placed upon her right of...