Maxey v. Sauls
Decision Date | 11 April 1963 |
Docket Number | No. 18053,18053 |
Citation | 242 S.C. 247,130 S.E.2d 570 |
Parties | Dorothy P. MAXEY, as Administratrix of the Estate of Timothy Dean Maxey, Appellant, v. Donald Joseph SAULS, Mary Lou Stokes, as Administratrix of the Estate of James N. Stokes and J. I. Player, as Administrator of the Estate of David L. Maxey, Defendants, of which J. I. Player, as Administrator of the Estate of David L. Maxey is, Respondent. |
Court | South Carolina Supreme Court |
Murdaugh, Eltzroth & Peters, Hampton, for appellant.
Hope & Cabaniss, Charleston, for respondent.
Timothy Dean Maxey, a minor four years of age, and his father, David L. Maxey, were killed when the automobile driven by the father, and in which the minor was riding as a guest passenger, collided with two other automobiles at an intersection. This action was instituted by the administratrix of the estate of the minor son against the administrator of the estate of the father, and the operators of the other vehicles, to recover damages for the wrongful death of the son, alleged to have been caused by the joint and concurrent negligent, reckless, wilful and wanton acts of the father and the operators of the other vehicles. We are concerned in this appeal only with action brought by the administratrix of the estate of the unemancipated son against the administrator of the estate of his father to recover damages for the son's wrongful death.
Upon the service of the complaint, the administrator interposed a demurrer thereto on the ground that the plaintiff's intestate was an unemancipated child of defendant's intestate, and had no cause of action against the estate of his father. The lower court sustained the demurrer and the plaintiff has appealed.
It is the settled law of South Carolina, to which we adhere, that an unemancipated child had no right of action against his parent for personal injuries caused by the parent's negligence. Kelly v. Kelly, 158 S.C. 517, u55 S.E. 888. Parker v. Parker, 230 S.C. 28, 94 S.E.2d 12, 60 A.L.R.2d 1280.
The plaintiff contends, however, that the foregoing rule is inapplicable to the present case and the demurrer should have been overruled because (1) the death of the parent or child removes the reason for the rule, (2) the father had liability insurance and accordingly there is no conflict of interest which would call for the application of the foregoing rule of immunity from suit, and (3) this action being based upon the alleged wilful acts of the parent, the rule does not apply.
This is an action for wrongful death and is brought under the provisions of Section 10-1951 of the 1962 Code of Laws. This section is as follows:
(Emphasis added).
While the foregoing section creates a new cause of action, Osteen v. Southern Ry., Carolina Division, 76 S.C. 368, 57 S.E. 196; In Re Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660; Complete Auto Transit, Inc. v. Bass, 229 S.C. 607, 93 S.E.2d 912, the right to maintain the action is based upon the condition that 'the act, neglect or default' must be 'such as would, if death had not ensued, have entitled the person injured to maintain an action and recover damage in respect thereof.' In other words, 'if the deceased never had a cause of action, none accrues under the wrongful death statute.' Scott v. Greenville Pharmacy, Inc., 212 S.C. 485, 48 S.E.2d 324, 11 A.L.R.2d 745; Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790.
It is clear, therefore, that an action could not have been maintained had plaintiff's intestate lived, under the settled principle that...
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