Grainger v. Greenville, S. & A. R. Co.

• Decision Date: 28 July 1915
• Docket Number: 9147.
• Citation: 85 S.E. 968,101 S.C. 399
• Parties: GRAINGER v. GREENVILLE, S. & A. RY. CO.
• Court: South Carolina Supreme Court

85 S.E. 968

101 S.C. 399

GRAINGER v. GREENVILLE, S. & A. RY. CO.

No. 9147.

Supreme Court of South Carolina

July 28, 1915

Appeal from Common Pleas Circuit Court of Greenville County; J. W De Vore, Judge.

Action by J. B. Grainger, as administrator of Abel Grainger deceased, against the Greenville, Spartanburg & Anderson Railway Company. From an order of nonsuit, plaintiff appeals. Reversed.

McCullough Martin & Blythe, of Greenville, for appellant.

Haynsworth & Haynsworth, of Greenville, and Gaston & Hamilton, of Chester, for respondent.

FRASER J.

The respondent states the question before the court as follows:

"This is an action by the administrator of the estate of Abel Grainger, deceased, for damages for the mental and physical anguish suffered by Abel Grainger, who was fatally injured while in the employ of defendant. The accident occurred November 21, 1912, and Abel Grainger died as result of the injuries on November 26, 1912. On February 21, 1913 J. B. Grainger, as administrator of the estate of Abel Grainger, deceased, brought an action in the court of common pleas for Greenville county against the defendant herein, which action purported to be for the benefit of the father (J. B. Grainger) and the mother of the deceased. That action resulted in a verdict for the plaintiff in the sum of $3,000, the defendant thereupon appealed to the Supreme Court, and that appeal is now pending. Meanwhile, subsequent to the trial of the first case and pending the appeal, the plaintiff, on August 5, 1914, commenced the action at bar, in which he seeks, as administrator, to recover damages for the pain and suffering of plaintiff's intestate. When this second case came on for trial the circuit court granted a nonsuit on the ground that this action could not be maintained while the first action was pending. From this order of nonsuit the plaintiff has now appealed.

The question presented by this appeal is whether suit and recovery by the administrator under sections 3955, 3956, vol. 1, Code 1912 (Lord Campbell's Act), for the wrongful death of his intestate, will bar a subsequent suit by the administrator under section 3963, vol. 1, Code 1912 (the survival statute), for damages for the suffering of his intestate. In other words, did the Legislature intend to enable the administrator of one who came to his death as a result of injuries wrongfully inflicted to maintain two actions against the party committing the wrong?"

The respondent asked this court to review the cases on this subject, and that this court shall overrule some of its former decisions. Permission was given to review the cases. When a case is under review, then that case is, for the purposes of review, not authority. If it were otherwise, a review of a former decision would be a travesty. This requires of the court an entirely independent construction of the statutes. These sections of the statute are involved, to wit: Sections 3955, 3956, 3963, Code of Laws 1912, vol. 1. Section 3955:

"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."

This section provides only that the liability shall survive. This section confers a right of action on no one. It does not say who shall bring the action, nor for whose benefit the action shall be brought, nor the measure or elements of damage. If the statutes contained only section 3955, there would have been a mere naked liability not enforceable by any one for any purpose; a liability, but no right of...