Price v. Richmond & D. R. Co

Citation33 S.C. 556,12 S.E. 413
CourtUnited States State Supreme Court of South Carolina
Decision Date16 December 1890
PartiesPrice. v. Richmond & D. R. Co.

Death by Wrongful Act—Release by Deceased.

1. Gen. St. 8. C. § 2183, provides that "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 to maintain an action and recover damages, * * * 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. " Held, that the test of the right of an administrator to maintain an action for a death by a wrongful act is whether deceased could have maintained an action for the injury had he survived, and therefore, where deceased, during his life-time, has debarred himself from suit by the release of the wrong-doer, his administrator cannot maintain the action, unless he shows that the release was procured by fraud or duress.

2. Section 2186, which excludes a right of action in the administrator where deceased, in his life-time, has recovered a final judgment for the injury, does not imply that the administrator may maintain the action in every other case, but was only intended to prevent a double remedy in any case.

Appeal from common pleas circuit court of Richmond county.

John C. Haskell, for appellant.

Melton & Melton and B. W. Shand, for respondent.

McIver, J. This was an action brought by the plaintiff, as administratrix of Philip H. Price, deceased, to recover compensation in damages, for the killing of the intestate by the alleged fault of the defendant company, under the provisions of the act of 1859, now incorporated in the General Statutes as sections 2183-2186. The defendant, after denying all allegations of negligence, for a further defense alleged that, after the time of the alleged injury, and before the commencement of this action, the said intestate, for a valuable consideration, executed a paper acknowledg ing full satisfaction for all damages resulting from the alleged injury, and releasing and discharging the defendant company from all liability therefor. After the plaintiff had closed her testimony, the defendant moved for a nonsuit, upon the ground that there was no evidence of any negligence on the part of the defendant company, which motion was refused. The defendant then offered evidence for the purpose of showing that the deceased was injured by reason of his own negligence, and not through any want of care on the part of the defendant company; and also proposed to introduce the release executed by the deceased prior to his death, set up as one of the defenses in the answer, which, upon objection from the plaintiff, was ruled to be inadmissible. There were also other questions raised as to the admissibility of testimony, which, under the view we take of the effect of the release, need not be specifically mentioned. The jury having rendered a verdict in favor of the plaintiff, the defendant appeals, upon the several grounds set out in the record, which need not be repeated here, as we think the leading and controlling question in the case is as to the admissibility and effect of the release above mentioned.

The undisputed facts are that plaintiff's intestate received the injury complained of on the 18th of February, 1887, from the effects of which he died on the——day of November, 1887, and that in the mean time, to-wit, on the 8th of August, 1887, the intestate executed the release in question, so that the practical inquiry in this case is whether an action of this kind can be maintained, under our statute, where the party injured has, prior to his death, released his right of action. The two sections upon which, in our judgment, this question turns, read as follows: "Sec. 2183. 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 case, the person or corporation who would have been liable if death had not ensued...

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37 cases
  • Atlantic Coast Line R. Co. v. Beazley
    • United States
    • Florida Supreme Court
    • December 17, 1907
    ... ... itself or agents to excuse itself from liability to one who ... merely obeys an order of this sort.' ... In ... Prather v. Richmond & D. R. Co., 80 Ga. 427, text 436, 9 ... S.E. 530, 12 Am. St. Rep. 263, it was said: 'The ... conductor was in charge of the train. * * * The ... contract and receive the benefits of that contract. It seems ... to me that the decision in the case of Price v. Railroad ... Co., 33 S.C. 556, 12 S.E. 413, 26 Am. St. Rep. 700, ... would control in this case; and I think the plaintiff, having ... elected ... ...
  • Lyman v. Boston & A. R. Co.
    • United States
    • U.S. District Court — District of Massachusetts
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    ... ... U.C.Q.B. 474, 35 U.C.Q.B. 453; Griffiths v. Earl of ... Dudley, 9 Q.B.Div. 357; Griswold v. Railroad ... Co., 53 Conn. 371, 4 A. 261; Price v. Railroad ... Co., 33 S.C. 556, 12 S.E. 413. The plaintiff, therefore, ... is barred from recovering in this case by the contract made ... United States as the text. Leffingwell v. Warren, 2 ... Black, 599; Halsey v. McLean, 12 Allen, 438; ... City of Richmond v. Smith, 15 Wall. 429; New ... Hampshire v. Grand Trunk Ry., 3 Fed. 887; Louisiana ... v. Pilsbury, 105 U.S. 278; Blaine v. Curtis, 59 ... Vt ... ...
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    ...v. Interstate Chemical Corp., 170 N.C. 551, 87 S.E. 635 (1916); Haws v. Luethje, 503 P.2d 871 (Okla.1972); Price v. Richmond & D.R. Co., 33 S.C. 556, 12 S.E. 413 (1890); St. Louis Southwestern Ry. Co. v. Hengst, 36 Tex.Civ.App. 217, 81 S.W. 832 (1904); Legg v. Britton, 64 Vt. 652, 24 A. 101......
  • Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007), WD 65542.
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    • July 31, 2007
    ...& N. Y. R. R. Co., 81 Pa. Super. 318 (Pa. Super. Ct. 1922);McCafferty v. Pa. R.R. Co. , 44 A. 435 (Pa. 1899). 17. Price v. Richmond & D. R. Co., 12 S.E. 413 (S.C. 1890). 18. Legg v. Britton, 24 A. 1016 (Vt. 19. 22A Am. Jur. 2d Death Section 142 (2006)(citing Varelis v. Nw. Mem. Hosp., 657 N......
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