Nohrden v. Northeastern R. Co.

• Citation: 32 S.E. 524,54 S.C. 492
• Parties: NOHRDEN v. NORTHEASTERN R. CO.
• Decision Date: 25 March 1899
• Court: United States State Supreme Court of South Carolina

32 S.E. 524

54 S.C. 492

NOHRDEN v. NORTHEASTERN R. CO.

Supreme Court of South Carolina

March 25, 1899

Appeal from common pleas circuit court of Charleston county; W. C Benet, Judge.

Action by William C. Nohrden, as administrator, against the Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Fitzsimons & Moffett, for appellant.

Murphy & Legare, for respondent.

McIVER C.J.

This action was commenced on the 27th of January, 1898, to recover damages sustained by reason of the death of plaintiff's intestate, caused, as alleged, by the negligence of the defendant company on the 8th day of September, 1897. The action is therefore brought under the provisions of the statute commonly called "Lord Campbell's Act," now incorporated in the Revised Statutes of 1893 (volume 1) as sections 2315-2318. The provisions of section 2316, as amended by the act of 1893 (21 St. at Large, p. 523) are as follows: "Every such action shall be for the benefit of the wife, husband, parent and children of the person whose death shall have been so caused; and if there be none such then for the benefit of the heirs at law or distributes of the person whose death shall have been so caused as may be dependent on him for a support; *** and the amount so recovered shall be divided among the before mentioned parties in such shares as they would have been entitled to if the deceased had died intestate, and the amount recovered had been personal assets of his or her estate." In Lilly v. Railroad Co., 32 S.C. 142, 10 S.E. 932, it was held that, unless it is alleged in the complaint that the parties for whose benefit the action is brought bear the relationship to the intestate above mentioned, the complaint states no cause of action, and is demurrable. In Reed v. Railroad Co., 37 S.C. 42, 16 S.E. 289, it was alleged that the intestate died, leaving surviving him his father (who has since died), his mother, his wife, and four minor children naming them (one of whom has since died), and that the action was brought for the benefit of the wife and the three surviving children and the mother of said intestate. The court held that, although the mother was improperly included among the beneficiaries, that error could be corrected by striking out her name, and overruled the demurrer so far as based upon that error. That case shows that in ascertaining who are the beneficiaries in a given case the language in the latter part of section 2316, 1 Rev. St., declaring that the amount recovered "shall be divided among the before mentioned parties in such shares as they would have been entitled to if the deceased had died intestate, and the amount recovered had been personal assets of his or her estate," must not be overlooked; in other words, that only those of the classes mentioned in the first part of the section--"wife, husband, and children"--can share in the distribution of the amount recovered, who would have been entitled, under the statute of the distributions, to share in the personal estate of the intestate. Hence where, in the Reed Case, the intestate died, leaving a widow and children, neither his father nor his mother could be included among those for whose benefit the action was authorized to be brought. It is scarcely necessary to say that, though this section has been further amended by an act approved Feb. 11, 1898 (22 St. at Large, p. 788), such amendment cannot be applied to this case, as it was not adopted until after the cause of action arose, and after this action was commenced.

The first question presented by this appeal which we propose to consider is whether it was error to refuse the motion to make the complaint more definite and certain by stating whether the intestate "left a wife surviving him, or whether the alleged parent, William C. Nohrden, for whose benefit alone this action is brought, is the only party beneficially entitled under section 2316 [volume 1] of the Revised Statutes of 1893 of South Carolina." Under the law as above stated, it seems to us clear that the plaintiff should have been required to amend his complaint by incorporating therein such a statement of facts as would show that he was the only person for whose benefit the action could be brought. The only allegation in the complaint upon this subject, repeated in totidem verbis in the...