Dennis v. Atlantic Coast Line R. R.

• Decision Date: 28 November 1904
• Citation: 49 S.E. 869,70 S.C. 254
• Parties: DENNIS v. ATLANTIC COAST LINE R. R.
• Court: South Carolina Supreme Court

49 S.E. 869

70 S.C. 254

DENNIS v. ATLANTIC COAST LINE R. R.

Supreme Court of South Carolina

November 28, 1904

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

Action by Cornelia A. Dennis, administratrix of Frank McGowan against the Atlantic Coast Line Railroad. From judgment sustaining demurrer to complaint, plaintiff appeals. Affirmed.

W. F Clayton, for appellant. Willcox & Willcox, for respondent.

GARY A. J.

Frank McGowan, a resident of South Carolina, was an engineer in the employment of the defendant, and was killed in North Carolina by the wreck of an engine he was running on the 10th November, 1900, more than one year before this action was commenced by his administratrix. It is alleged that the death of the intestate was caused by defects in the machinery and appliances he was operating, and that the defendant had notice of such defects.

An agreement between counsel is set out in the record, in which appears the following statement: "The issue is as to whether the plaintiff was barred of her right of action in this state, it being admitted that, under the Lord Campbell act of North Carolina, the action must be brought within one year, while in the state of South Carolina the limitation was two years, and that this action was brought after the lapse of one year and within two years; the object being to bring all matters before this court on this one appeal, and to save several appeals." The reason for the agreement was because this question would not otherwise at this time have been properly before the court.

The appellant contends that her action was brought under the statute of North Carolina passed in 1897; that it was independent of the Lord Campbell act (Code N.C. § § 1498 1500); that its provisions were comprehensive enough to afford relief in this action; that the statute of limitations pertains merely to the remedy, and is governed by the lex fori. That statute is as follows: "Section 1. That any servant or employee of any railroad company operating in this state, who shall suffer injury to his person, or the personal representative of any servant or employee who shall have suffered death, in the course of his service or employment with said company, by the negligence, carelessness or incapacity of any servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company." Priv. Laws N.C. 1897, p. 83, c. 56. The other section has no application to this case. The respondent contends that this statute is but an enlargement of the provisions of the Lord Campbell act; that they are in pari materia, and must be construed together; that the time within which the action must be brought under the Lord Campbell act is in no sense a statute of limitations; and that any facts that would have destroyed the right of recovery if the suit had been instituted in North Carolina will defeat the action in this state.

The Lord Campbell act of North Carolina is as follows: "Whenever the death of a person is caused by the wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executors, administrators, or collectors, and this notwithstanding the death, and although the wrongful act or neglect causing death, amount in law to felony." Code N.C. § 1498. The statute of 1897 has been declared by the Supreme Court of North Carolina, in the case of Hancock v. N. & W. R. R., 124 N.C. 222, 32 S.E. 679, to be constitutional. Our construction of the statute of 1897 is that it was merely intended to enlarge the provisions of the Lord Campbell act, that it was in the nature of an amendment to that act, and that they must be construed together.

This action could not have been maintained in North Carolina after more than one year had elapsed from the death of the person suffering the injury. In Huntington v. Attrill, 146 U.S. 657, 670, 13 S.Ct. 224, 228, 36 L.Ed. 1123, the court says: "In order to maintain an action for an injury some courts have held that the wrong must be one which would be actionable by the law of the place where the redress is sought, as well as by the law of the place where the wrong was done. *** But such is not the law of this court. By our law a private action may be maintained in one state, if not contrary to its own policy, for such a wrong done in another and actionable there, although a like wrong would not be actionable in the state where the suit is brought." See, also, 16 Harv. L. Rev., No. 1, p. 63 (Nov., 1902). As we have a statute which gives an action for wrongfully causing death, it is not against public policy to enforce such a liability here, although it arose in another jurisdiction. Stewart...