Gilliam v. Southern Ry. Co.

• Decision Date: 10 October 1917
• Docket Number: 9817.
• Citation: 93 S.E. 865,108 S.C. 195
• Parties: GILLIAM v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

93 S.E. 865

108 S.C. 195

GILLIAM v. SOUTHERN RY. CO.

No. 9817.

Supreme Court of South Carolina

October 10, 1917

Appeal from Common Pleas Circuit Court of Abbeville County; John S Wilson, Judge.

Action by Robert Gilliam, as administrator, etc., against the Southern Railway Company. From a judgment for plaintiff defendant appeals. Reversed.

J Moore Mars, of Abbeville, for appellant.

Graydon & Graydon, of Columbia, and J. Howard Moore, of Abbeville, for respondent.

HYDRICK J.

This action was brought under the federal Employers' Liability Act to recover damages for injuries to, and the death of, Whit McBride for the benefit of his widow and minor child. Plaintiff had judgment, from which defendant appealed.

At the time of his death, McBride was employed by defendant as a section hand, and was engaged with others in clearing away the wreck of a freight train on defendant's road, and in repairing the track which had been torn up. There was in the wreck a low-sided gondola, loaded with iron car wheels. It was raised by means of a derrick, so that the men could go under it and relay the track. While they were so engaged, the suspended car suddenly turned to one side, and its load of iron car wheels rolled out and fell upon the workmen, five of whom--McBride included--were killed, and seven were injured. Some 16 or 18 years before, McBride married the woman, and had by her the child for whose benefit the action was brought. After living with his wife about a year, he abandoned her and his child. There was no evidence that he afterwards contributed anything to the support of either of them; nor was there any evidence that he did not, except as that was inferable from the fact that he had not lived with them or communicated with them. There was evidence that, after he abandoned her, his wife lived in the house with another man, and that she had another child.

The first assignment of error is in allowing Butler McBride, a witness for plaintiff, to narrate a conversation which he had with A. J. Sisk, the foreman under whom deceased was working at the time he was killed, about the accident and the death of McBride. The statements of Sisk, made several days after the accident, were not admissible as evidence against defendant, and should have been excluded as hearsay. Kitchens v. Melton, 103 S.C. 270, 87 S.E. 1006. It is unnecessary to consider respondent's contention that the error was made harmless by the subsequent examination of Sisk as a witness for defendant, as the judgment must be reversed on other grounds.

The court erred, also, in allowing plaintiff to introduce testimony tending to prove that defendant had admitted liability for the accident by settling the other claims that grew out of it. Rookard v. Railway, 84 S.C. 190, 65 S.E. 1047, 27 L. R. A. (N. S.) 435, 137 Am. St. Rep. 839; Cable Piano Co. v. Railway, 94 S.C. 143, 77 S.E. 868. Defendant moved for a directed verdict on two grounds, which are renewed here. The first is that there was no evidence that the beneficial plaintiffs sustained any actual pecuniary loss by the death of McBride; and the second is that, as his death was instantaneous, there was no survival of the right of action for his pain and suffering.

As to the first ground, the motion was properly refused. The law imposes upon every man the duty of supporting his wife and minor unmarried children; and, in this state, any able-bodied man who, without just cause or excuse, abandons or fails to supply the actual necessaries of life to his wife or to his minor unmarried child or children dependent upon him, is guilty of a misdemeanor. Crim. Code, § 697; State v. English, 101 S.C. 304, 85 S.E. 721, L. R. A. 1915F, 977. Therefore, prima facie and presumptively, the widow and minor unmarried child of deceased had a legal pecuniary interest in the continuance of his life. The fact that he had abandoned them and had failed to perform the duty imposed upon him by the law did not absolve him from the obligation, nor deprive them of the right to have it enforced. The evidence did not warrant the court in holding, as matter of law, that the wife had forfeited her right of support by her conduct. As to that, the evidence made an issue for the jury, under proper instructions.

Besides, there was no evidence that the right of the child, if she then was, or should thereafter during minority become, dependent was not still existent; and the action was brought for her benefit as well as the wife's.

When the relation between deceased and the beneficial plaintiff is that of husband and wife or parent and minor child, in the absence of evidence to the contrary, actual pecuniary loss will be presumed from the death. Minneapolis & St. Paul Railroad Co. v. Gotschall, 244 U.S. 66, 37 S.Ct. 598, 61 L.Ed. 995; Ingersoll v. Detroit, etc., Railroad Co., 163 Mich. 268, 128 N.W. 227, 32 L. R. A. (N. S.) 362; Fogarty v. Northern Pacific Railroad Co., 74 Wash. 397, 133 Pac. 609, L. R. A. 1916c, 800; note in L. R. A. 1916E, 127, 144, 148. In Gotschall's Case deceased was a minor son 20 years old. The court said:

"Again it is insisted that error was committed in submitting the case to the jury because there was no evidence of pecuniary loss resulting to Gotschall's father, on whose behalf the suit was brought. But this disregards the undisputed fact that the deceased was a minor and as, under the Minnesota law, the father was entitled to the earnings of his son during minority, the question is one not of right to recover, but only of the amount of damages which it was proper to award."

It follows, however, that, although the technical right may exist, yet the deprivation of it may cause very little, or possibly, no actual financial loss, for it may be shown from the relation, circumstances, and relative condition...