Kennemore v. South Carolina State Highway Dept.
| Decision Date | 02 February 1942 |
| Docket Number | 15364. |
| Parties | KENNEMORE v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT. |
| Court | South Carolina Supreme Court |
John M. Daniel, Atty. Gen., M. J. Hough and T. C. Callison, Asst Attys. Gen., and Bolt & Wilkins, of Greenville, for appellant.
Lional E. Wooten, of Greenville, for respondent.
This action was instituted on November 22, 1940, for the wrongful death of respondent's intestate which occurred December 25, 1939. The action was brought under and by virtue of Section 5887, Volume III, Code of Laws of South Carolina 1932, which provides that such action may be enforced in the same manner as is now provided by Section 412 for actions by administrators and executors where death results from personal injuries. Answer was filed by the appellant on December 13, 1940, reserving therein its right to interpose a demurrer to the complaint. On September 6, 1941, the appellant served upon the respondent's attorney a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action in that the complaint failed to allege the name and relationship of the person or persons for whose benefit the action was brought.
The demurrer was heard by Honorable C. C. Featherstone, presiding Judge, at Greenville, South Carolina, and at the hearing the respondent's attorney made a motion to be allowed to amend the complaint by alleging the name of the beneficiary. On September 17, 1941, Judge Featherstone filed an order overruling the demurrer and allowing respondent to amend the complaint.
The statutory period in which an action may be brought against the appellant on account of the death of the respondent's intestate expired December 25, 1940. The amended complaint was served on September 24, 1941.
From the order of Judge Featherstone this appeal is taken.
There are two questions involved, (1) Does the complaint, which is brought for the wrongful death of respondent's intestate state a cause of action, which does not allege the name of the beneficiary or beneficiaries and their relationship to the deceased as set forth in the statute, and (2) Where a complaint does not state a cause of action, and the Statute of Limitation having run, does the court have authority to allow the respondent to amend the complaint by alleging the beneficiaries and their relationship and thus state a cause of action?
Both questions are definitely settled adversely to respondent in the case of Lilly v. Charlotte, Columbia & Augusta Railroad Company, 32 S.C. 142, 10 S.E. 932, the legal issues in that case being identical...
To continue reading
Request your trial
-
Rushton v. South Carolina State Highway Dept.
... ... cited the cases of United States Casualty Co. v. Highway ... Department, 155 S.C. 77, 151 S.E. 887, and Ancrum v ... Highway Department, 162 S.C. 504, 161 S.E. 98. And it ... was further held that under the cases of Ouzts v. Highway ... Department, 161 S.C. 21, 159 S.E. 457, and Kennemore ... v. Highway Department, 199 S.C. 85, 18 S.E.2d 611, the ... complaint had been rendered incapable of amendment to cure ... the deficiency by the passage of time. The joint resolution, ... No. 224 of 1943, referred to above, was declared ... [34 S.E.2d 486] ... void as a special act, in ... ...
-
Sellers v. Lewis & Holmes Motor Freight Corp.
... ... No. 16234.Supreme Court of South CarolinaJune 30, 1949 ... On ... State of North Carolina, whereupon at the conclusion of ... In the ... case of Kennemore v. South Carolina State Highway ... Department, ... States Casualty Co. v. State Highway Dept., 155 S.C. 77, ... 151 S.E. 887, this court ... ...
-
Smith v. Atlantic Coast Line R. Co.
... ... CO. No. 16078.Supreme Court of South CarolinaMay 10, 1948 [47 S.E.2d 726] ... 554, 48 S.E. 4, 1 Ann. Cas. 747; ... Kennemore v. South Carolina State Highway ... Department, ... ...