Claussen v. Brothers

• Decision Date: 30 June 1928
• Docket Number: 12476.
• Citation: 145 S.E. 539,148 S.C. 1
• Parties: CLAUSSEN et al. v. BROTHERS et al.
• Court: South Carolina Supreme Court

145 S.E. 539

148 S.C. 1

CLAUSSEN et al. v. BROTHERS et al.

No. 12476.

Supreme Court of South Carolina

June 30, 1928

Appeal from Common Pleas Circuit Court of Florence County; T. J Mauldin, Judge.

Action by John R. Claussen and another, as executors of the estate of W. F. Claussen, deceased, against George J Brothers and another. On death of the named defendant, an order was entered allowing the substitution of Mrs. Erwin S Brothers, as executrix of the estate of George J. Brothers deceased, and from such order Mrs. Erwin S. Brothers appeals. Order allowing substitution reversed.

R. B. Fulton, of Florence, for appellant.

R. E. Whiting of Columbia, and D. Gordon Baker, of Florence, for respondents.

STABLER J.

This action was brought originally against the Atlantic Coast Line Railroad Company and George J. Brothers for the alleged wrongful death of W. F. Claussen. On March 21, 1925, the defendant Brothers died, leaving of force a will in which his widow, Mrs. Erwin S. Brothers, was named as executrix. Thereafter a motion was made by the respondents before his honor, Judge Mauldin, to substitute Mrs. Brothers, as executrix, as party defendant in the place of her deceased husband. Mrs. Brothers resisted the motion on the ground that Lord Campbell's Act, under which this action was brought, does not provide for a survival of the action against the representative of the tort-feasor upon his death. Upon the hearing the court granted the motion and passed an order allowing the substitution.

Mrs. Brothers appeals to this court; the appeal presenting but a single question: Does a cause of action for death by wrongful act, brought under the statute, survive against the personal representative of the wrongdoer? This specific question has never been passed upon by this court. The statute under which this action is brought (sections 367 and 368, vol. 1, Code 1922) is commonly known as Lord Campbell's Act. Section 367 is as follows:

"Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony."

Section 368 provides that the action shall be brought in the name of the executor or administrator of the deceased person, for the benefit of the beneficiaries named therein, and prescribes the measure of damages. It must be conceded that this right of action, being of purely statutory origin, abates upon the death of the wrongdoer, unless some statutory authority is found for its survival. There is no such provision in the statute creating the right, and unless we are able to find some other statute providing for such survival the action must abate.

The respondents contend that, even if the right of action created by Lord Campbell's Act abates, under the provisions of that act, at the death of the wrongdoer, that act must be construed with the survival statute (section 375, vol. 1, Code 1922), and that when these two statutes are construed together, the right of action created by the death statute is seen to survive against the representative of the wrongdoer. The survival statute is as follows:

"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 the deceased persons, and the legal representatives of insolvent persons, and defunct or insolvent corporations, any law or rule to the contrary notwithstanding."

While the act is remedial, and a liberal construction should be given to its provisions (Morris v. Electric Co., 70 S.C. 281, 49 S.E. 855), we must resort, in arriving at the intent of the Legislature, to the actual words used in the statute, and the court should not place such judicial construction upon the language used as to effectuate its own conception of right rather than the intent of the Legislature.

The right of action created under Lord Campbell's Act was unknown to the common law. It arises only upon the death of the injured person, and did not exist prior to his death. If a person is injured, but not killed, by the wrongful act of another, there exists only one cause of action, namely, that under the common law for the injuries received; if the injured person should die, whether from the injuries received or from other causes, this cause of action would survive, under the survival act, for the benefit of his estate. There would also come into existence, if he should die from the injuries received, a new right of action created by the death statute, in favor of the beneficiaries named in the statute, for the loss sustained by them by reason of the death. Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L. R. A. 660; Osteen v. Railway Co., 76 S.C. 368, 57 S.E. 196; Bennett v. Electric Co., 97 S.C. 27, 81 S.E. 189; Grainger v....