Gleaton v. Southern Ry. Co.

• Decision Date: 12 February 1948
• Docket Number: 16044.
• Parties: GLEATON v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

46 S.E.2d 879

212 S.C. 186

GLEATON v. SOUTHERN RY. CO. et al.

No. 16044.

Supreme Court of South Carolina

February 12, 1948

T. B. Bryant and A. J. Hydrick, both of Orangeburg for appellant.

Moss & Moss, of Orangeburg, and Frank G. Tompkins, of Columbia, for respondents.

STUKES, Justice.

This action arose from the crossing accident involved in Gleaton v. Southern Ry. Co. et al., 208 S.C. 507, 38 S.E.2d 710, which occurred December 20, 1944. That suit was for damages for wrongful death, under Lord Campbell's Act, Secs. 411 and 412 of the Code of 1942, and verdict and judgment for plaintiff were affirmed on appeal. Afterward there was tried in the Court of Common Pleas an action by the executor of the estate of the deceased under the survival statute, Sec. 419 of the Code, which resulted in verdict and judgment for the defendants, who were the railway company and its engineer in charge of the operation of the train. Then came this action which was commenced in January 1947 by the widow of the deceased, plaintiff in her individual capacity as the alleged owner of the automobile in which decedent received his fatal injuries, for damages to the automobile which it is alleged was her separate property. The defendants are the same as in the other actions.

There will first be considered the contention of the parties with respect to the Statute of Limitations. This was heard in the lower court on demurrer and it was held that the action was barred, either under the provisions of Sec. 8339 or Sec. 8376 of the Code of 1942. This was error as is seen by reference to the statutes and their origin.

Section 8339 was originally Sec. 10 of Act No. 13 of 1892, approved December 19, 1892, 21 Stat. 8, which was entitled: 'An Act to amend Title XII, Chapter XL, of Railroad Corporations and General Railroad Law, and to Provide for the Regulation of Railroad Freight and Passenger Tariffs in This State, to Prevent Unjust Discrimination and Extortion in the Rates Charged for Transportation of Passengers and Freights, and to Prohibit Railroad Companies and Corporations and Lessees in This State from Charging Other than Just and Reasonable Rates, and to Punish the Same, and Prescribe a Mode of Procedure and Rules of Evidence in Relation Thereto, Providing for the Election of Railroad Commissioners, and to Prescribe Their Powers and Duties in Relation to the Same.'

Thus it is clear that the damages recoverable under this section are those resulting from violation of some rule or regulation of the then railroad commissioners, now the Public Service Commission, and action therefor must be brought within twelve months of the violation and injury. It has nothing to do with this action under the common law and under the railroad crossing statutes.

The other code section relied upon by the defendants as a bar to the action, No. 8376, is likewise irrelevant. It provides that judgments in personal and property injury actions against railroad and street railway corporations shall relate back in lien to the dates when the causes of action arose and take priority over payment of mortgage bonds of the companies, provided that in order to secure such priority of lien and payment the action must have been commenced within two years from the time that the cause of action arose.

Lucid exposition of the meaning and effect of this statute is found in the opinion in Link v. Receivers of Seaboard Air Line Ry. Co., 4 Cir., 73 F.2d 149. The situation upon which the statute operates has not arisen in this case. There is no question here as to the effective date of the lien of the judgment; indeed, there is not yet any judgment.

The order sustaining the demurrer to the complaint upon the grounds of the applicability of the statutes which have been referred to, is reversed.

The foregoing sustains the appeal of the plaintiff. That of the defendants will now be considered.

Their answer contains as a third defense the allegations that plaintiff's husband died testate and solvent and his executor administered the estate and was discharged by the Probate Court on November 6, 1946; that the will gave the personal property, after inconsequential specific bequests, in equal shares, to testator's widow, plaintiff in this action, and to his son, Rudolph Gleaton; that the executor, Rudolph, instituted the survival action against the defendants, which has been mentioned. From this point we quote the remainder of the defense:

'5. That Rudolph Gleaton, as Executor, instituted the aforesaid action in this Honorable Court which acquired jurisdiction of the parties and the subject matter and the said action was tried upon its merits at the October, 1946, Term of this Court, which trial resulted in a verdict for the defendants, upon which verdict final judgment was entered resolving all issues therein in favor of these defendants, and that the said judgment is recorded in the office of the Clerk of this Court in Judgment Roll 309, Package 9.

'6. That the issues of negligence, gross negligence, willfullness and wantonness litigated in the aforesaid action instituted by Rudolph Gleaton as Executor are the same issues of negligence, gross negligence, willfullness and wantonness which the plaintiff is attempting to litigate in this action; that the plaintiff in this action was a privy of Randolph Gleaton, as Executor, in the aforesaid action, is bound by the judgment therein rendered and estopped from litigating a second time any of the issues of negligence, gross negligence, willfullness and wantonness therein finally determined.'

Plaintiff successfully demurred to this defense and defendants have appealed. The circuit court held that the plaintiff is not bound in the respect claimed by the judgment in the former action by the executor because there was no privity between the latter and the present plaintiff. Defendants state the question raised by their appeal as follows:

'Was the plaintiff in this action a privy to Rudolph Gleaton, as Executor, in the action brought under Section 419 of the Code of 1942 against the defendants in this action, arising out of the death of Mike Gleaton, and does the judgment in the former action estop the plaintiff from re-litigating any issues of negligence, gross negligence, wilfulness and wantonness finally determined in the former action?'

Defendants do not contend that the executor's action under the survival statute, which resulted in verdict and judgment for the defendants, constitutes res judicata with respect to the present action; but that the judgment does constitute an estoppel of the plaintiff upon the factual issues of negligence, etc. The distinction is important and at times in the past has been an elusive one but it is now well established. The leading American authority is Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, opinion by the able Justice Field, which is quoted from at length in Willoughby v. Northeastern Railroad Company, 52 S.C. 166, 29 S.E. 629, subsequently approved in Johnston-Crews Co. v. Folk, 118 S.C. 470, 111 S.E. 15. Incisive comment is contained in the note in 88 A.L.R. 574.

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