Morris v. Spartanburg R. Gas & Elec. Co.

• Decision Date: 24 November 1904
• Citation: 49 S.E. 854,70 S.C. 279
• Parties: MORRIS v. SPARTANBURG RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

49 S.E. 854

70 S.C. 279

MORRIS v. SPARTANBURG RY., GAS & ELECTRIC CO.

Supreme Court of South Carolina

November 24, 1904

Appeal from Common Pleas Circuit Court of Spartanburg County Buchanan, Judge.

Action by Jackson B. Morris, administrator of William S. Morris against the Spartanburg Railway, Gas & Electric Company. From an order refusing a motion to declare action abated defendant appeals. Affirmed.

Sanders & De Pass, for appellant. Stanyarne Wilson and C. P. Sims for respondent.

JONES J.

The plaintiff, as administrator of William S. Morris, deceased, brought this action against defendant company for damages for wrongfully and negligently causing the death of his intestate by running its railway car over him near Glendale Factory, on its line between Spartanburg, S. C., and Clinton, S. C., in May, 1902. The action was brought under sections 2851, 2852, et seq., Civ. Code 1902, vol. 1, and the complaint, inter alia, alleged: "That said deceased left as his only heirs at law and distributees his father, Wm. Simpson Morris, his brother, Jackson B. Morris, and his sisters, Frances Crocker and Tallulah Burdett, for whose benefit this action is brought." Before the case was called for trial, the father, Wm. Simpson Morris, died, and thereupon defendant gave notice of motion to strike from the paragraph of the complaint above quoted the words, "his brother, Jackson B. Morris, and his sisters, Frances Crocker and Tallulah Burdett," on the ground that the complaint did not state a cause of action in their favor, and also gave notice of motion to dismiss the complaint on the ground that the action had abated by the death of William Simpson Morris, the father, the sole person who was beneficiary at the death of intestate or commencement of the action. The motion was refused by Judge Buchanan, and this appeal from such refusal presents the question whether the death of the father, after the commencement of the suit, abated the action.

Section 2851 provides: "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."

Section 2852 provides: ...