Hardin v. Southern R. Co.

• Decision Date: 22 April 1924
• Docket Number: 11486.
• Citation: 122 S.E. 582,128 S.C. 216
• Parties: HARDIN v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

122 S.E. 582

128 S.C. 216

HARDIN v. SOUTHERN RY. CO.

No. 11486.

Supreme Court of South Carolina

April 22, 1924

Appeal from Common Pleas Circuit Court of York County; T. J Mauldin, Judge.

Action by P. W. Hardin against the Southern Railway Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Order affirmed.

The circuit court order sustaining a demurrer to the complaint follows:

On the call of the above case on the docket, at the spring term 1923, of the court for Lancaster county, the defendant, upon notice stating the grounds thereof, interposed a demurrer to the complaint, upon the general ground that it did not state facts sufficient to constitute a cause of action against the defendant. The more specific grounds of the demurrer will appear by reference to the notice of motion served upon plaintiff's counsel. This matter was fully argued before me by counsel for both plaintiff and defendant.

The main grounds of the demurrer argued by counsel for the defendant were:

(1) That the plaintiff's cause of action was barred under the terms of the federal Employers' Liability Act (U. S Comp. St. §§ 8657-8665), because it was not brought within two years after the alleged cause of action accrued.

(2) That the complaint fails to state any facts showing negligence on the part of the defendant, either with respect to the original injury or the alleged injury arising from the employment of an inefficient and incompetent physician to treat said injuries.

(3) That the complaint fails to state facts showing negligence in the selection and employment of a physician, as no facts are stated tending to show that the defendant was under any contractual duty to employ a physician, and that it does not allege any facts tending to show that defendant knew, or had any reasonable grounds for knowing, that the physician alleged to have been employed was inefficient, unskillful, or incompetent.

(4) That any cause of action that plaintiff might have had was exclusively under the federal Employers' Liability Act and that the plaintiff could not split up such cause of action, and any alleged cause of action arising from treatment by an incompetent physician could not be separated from the original injury, as any alleged damages therefor would be too indefinite, uncertain, and speculative to constitute a cause of action.

In the second paragraph of the complaint it is alleged that the plaintiff was injured by the negligence of the defendant, its agents and servants, on the 21st day of March, 1917, while in the service and employment of the defendant, on its main line between Washington, D. C., and Charlotte, N. C., at a point in the state of Virginia near the small village of Covesville. The summons attached to the complaint shows that the action was commenced on or about the 16th day of February, 1923, more than two years after the plaintiff was injured as alleged. In my opinion, the clear inference to be drawn from the facts stated is that the plaintiff received his injuries while both he and the defendant were engaged in interstate commerce. If this be true, then it is clear that the plaintiff's only remedy was under the federal Employers' Liability Act, which is exclusive of all other remedies in cases arising thereunder. Section 6 of that act provides that "no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued."

It is very well settled under the federal decisions that this provision is not merely a statute of limitations, but is a condition upon which the action may be maintained. In other words, it is a condition attached to the right to sue at all and unless suit shall be brought within the two-year period the right of action provided in the statute is, for all intents and purposes, destroyed and abrogated. Walker v. Iowa Cent. R. Co. (D. C.) 241 F. 395; Morrison v. B. & O. R. R. Co., 40 App. D. C. 391, Ann. Cas. 1914C, 1026; Atlantic Coast Line Railroad Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226. I do not think that the complaint states any facts from which negligence of the defendant can be inferred that proximately caused the plaintiff's alleged injury, on the 21st of March, 1917, and, if such negligence had been sufficiently stated, the action for the original injuries would be clearly barred under section 6 of said act of Congress.

Plaintiff's counsel, however, frankly stated in open court that he made no claim for damages for plaintiff's original injury, and that he was not bringing suit therefor under the federal Employers' Liability Act. He contended that his cause of action was for damages for malpractice of the physician, who was alleged to have been employed by the defendant, and that this was a separate and independent tort. As to this contention, I am of the opinion that the injuries intended to be alleged in the third and fourth paragraphs of the complaint are merely a continuation or aggravation of plaintiff's original injury, and his cause of action cannot be separated, so as to make two separate and distinct causes of action. The complaint alleges that the latter injury and present condition of plaintiff's ankle was the result of treatment by an inefficient physician employed by the defendant. I think, however, that all the damages that the plaintiff is alleged to have sustained resulted from the original injury, and are a part and parcel thereof. Chicago, City R. R. v. Saxby, 213 Ill. 274, 72 N.E 755, 68 L. R. A. 164, 104 Am. St. Rep. 218; Bement...