Powers v. Powers
| Decision Date | 08 January 1962 |
| Docket Number | No. 17861,17861 |
| Citation | 239 S.C. 423,123 S.E.2d 646 |
| Court | South Carolina Supreme Court |
| Parties | Churchill C. POWERS, Executrix of the Estate of Robert W. Powers, Appellant, v. Emma H. POWERS, Executrix of the Estate of Ervin T. Powers, Respondent. |
William A. Rogers, Bennettsville, Robinson, McFadden & Moore, Columbia, for appellant.
Nelson, Mullins, Grier & Scarborough, Columbia, Miller & Miller, Bennettsville, for respondent.
This is a common law action for the wrongful death of Robert W. Powers, brought by the executrix of his estate against the executrix of the estate of Ervin T. Powers. The deceased were fellow employees and the issue involved in this appeal concerns the right of the plaintiff to maintain the present action, in view of the fact that all parties were subject to the South Carolina Workmen's Compensation Act, Section 72-1 et seq., 1952 Code of Laws.
This suit arose out of the deaths of both Robert and Ervin Powers in an airplane crash which occurred when the plane in which they were flying struck a mountain near Asheville, North Carolina. They were brothers and were employed by a general heating and plumbing business, owned by their father, J. L. Powers. They and their employer were operating under and subject to the South Carolina Workmen's Compensation Act. While on a business trip for their employer, traveling in an airplane owned and piloted by Ervin Powers, they were both killed when the airplane in which they were flying crashed. Their deaths were the result of an accident which arose out of and in the scope of their employment, and the wife and children of each have been paid full benefits under the South Carolina Workmen's Compensation Law.
After workmen$hs compensation benefits were paid, this action was instituted by the executrix of the estate of Robert Powers to recover for his wrongful death, allegedly resulting from the negligence of Ervin Powers, a fellow employee, in the operation of the airplane at the time. Upon the trial of the case and at the conclusion of all of the testimony, the trial judge directed a verdict against the plaintiff upon the ground that an employee, as here, subject with his employer to the provisions of the Workmen's Compensation Act, whose injury arose out of, and in the course of his employment, could not maintain an action at common law against his follow employee whose negligence caused the injury. The ruling of the trial judge was based upon the decision of this Court in Nolan v. Daley, 222 S.C. 407, 73 S.E.2d 449. The plaintiff has appealed from the decision of the lower Court and concedes that the decision in Nolan v. Daley precludes the maintenance of the present action unless that decision is either (1) overruled, or (2) held to be inapplicable to the facts of this case.
The plaintiff has petitioned that we review and overrule the decision in Nolan v. Daley, decided November 12, 1952. That decision involved a construction of Section 72-401 of the 1952 Code of Laws, as it affected the right to maintain an action such as is here involved. While the Court was not unanimous at that time, as it would not be now if the question were being presented for the first time, the issues, relative to the proper construction to be placed upon the statute in question, were considered and decided against the contention of the plaintiff by a majority of the Court. The divergent views upon the question are set forth in that case in the majority and...
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