Edgar v. Castello, CASE No. 897.

• Decision Date: 01 July 1880
• Docket Number: CASE No. 897.
• Citation: 14 S.C. 20
• Parties: EDGAR v. CASTELLO.
• Court: South Carolina Supreme Court

14 S.C. 20

EDGAR

v.CASTELLO.

CASE No. 897.

Supreme Court of South Carolina.

Jul. 23d, 1880.

A father is not entitled to recover damages for the negligent killing of his infant child.

Before FRASER, J., Charleston, June, 1879.

This was an appeal by plaintiff from an order of non-suit. The case is sufficiently stated in the opinion of the court.

Mr. A. J. Magrath, Jr., for appellant.

Messrs. De Saussure & Son, contra.

The opinion of the court was delivered by

MCIVER, A. J.

This was an action brought by a father to recover damages for an injury, occasioned by the alleged negligence of the defendant, which caused the immediate death of the child of the plaintiff, an infant about three years of age. There is no allegation in the complaint that the plaintiff has sustained any damage by reason of the loss of the services of his child, or by reason of any expense or outlay to which he was thereby subjected, but damages are claimed simply for the killing of the child. A motion for a nonsuit was made and granted, upon the ground that under the statute of this state the action could only be maintained by the executor or administrator of the deceased. The statute referred to is the act of 1859, (12 Stat. 825), incorporated in the General Statutes, Chapter CIX., page 507. That statute, in its first section, provides that “ whenever the death of any person shall be caused by the wrongful act, neglect or default of another, *** in every such case the person or corporation who would have been liable if death had not ensued, shall be liable to an action,” &c., and, in its second section it declares “that every such action shall be for the benefit of the wife, husband, parent and children of the person whose death shall have been so caused, and shall be brought by, or in the name of the executor or administrator of such person,” &c., and then proceeds to provide for the distribution of the amount recovered among “the before-mentioned persons in such shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate.” There are no saving words in the statute and the imperative terms employed, which we have italicised in the foregoingquotation, exclude the idea that the party causing an injury, which resulted in death, was to be subjected to two actions for such injury; indeed, the provisions of the fifth section of that chapter seem to have been framed with a view to prevent a double liability. It is true that in the cases of Smith v. City of St. Joseph, 55 Mo. 456,(17 Am. R. 660), and Mewhirter v. Hatten, 42 Iowa 288, (20 Am. R. 618), it has been held that a party may be subjected to two actions for an injury done to a wife-one brought by her for the damage done to her personally, and one by the husband for damages sustained by him by reason of expenses incurred by him in procuring necessary medical and other attendance, and for the loss of her services during the time she was disabled by reason of the injury. But death did not ensue from the injury sustained in either of these cases, and they are, therefore, not strictly applicable to the case in hand. According to our view, however, in order to subject one to a liability to two actions for the same act or default, the law should be express and not left to depend upon inference merely, and while, if we had full access to the statutes of those states, we might be able to see that they were properly decided, we are not prepared, as at present advised, to yield our assent to them. But in addition to this our statute expressly declares that, in the action provided for by it, “the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought,” which terms would, of course, embrace damages resulting from the loss of services of the deceased; and if a father should, in his character as master, be permitted to bring an action in his own name for the loss of the services of his child, in the character of servant, it is manifest that the defendant would be liable to be twice called upon to respond in damages for the same thing. So that even if the cases above cited should be accepted as authoritative of the general principle therein announced, it is clear that they could not affect the question now under consideration, for they are based upon the ground that the damages recoverable by the wife are intended as a compensation to her for the personal injuries which she may have sustained, while the damages recoverable by the husband are intended as a compensation to him for the loss of her services and for the expenses incurred in providing her with proper attendance during the time she was suffering from the injury.

But, aside from our statute upon the subject, we think the motion for a non-suit was properly granted. As was said by Mr. Justice Hunt in Insurance Company v. Brame, 95 U....