Smith v. Atlantic Coast Line R. Co.

• Decision Date: 10 May 1948
• Docket Number: 16078.
• Parties: SMITH v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

47 S.E.2d 725

212 S.C. 332

SMITH v. ATLANTIC COAST LINE R. CO.

No. 16078.

Supreme Court of South Carolina

May 10, 1948

L. H. Andrews and R. B. Morgan, both of Columbia for appellant.

Woods & Woods, of Marion, for respondent.

OXNER Justice.

This action was instituted under the provisions of Sections 411 and 412 of the Code of 1942, familiarly known as Lord Campbell's Act, to recover damages for the alleged wrongful death of Odessa Jackson, and was brought by the administratrix of her estate for the benefit of Nelson Butler, the alleged adopted son of the deceased. The defendant, Atlantic Coast Line Railway Company, demurred to the complaint upon the ground that it did not appear from the allegations thereof that there is any beneficiary for whose benefit such an action might be brought. This appeal is from an order sustaining the demurrer.

It is admitted that Nelson Butler, the person for whose benefit this action was brought, was never formally adopted by Odessa Jackson but it is claimed that his status is to all intents and purposes that of a legally adopted child. In support of this contention, it is alleged in the complaint that his natural mother died many years ago and the whereabouts of his father is unknown; that Odessa Jackson, who never had any children, 'adopted' him when he was nine months old and thereafter he lived continuously in her home where she 'maintained, supported, cared for and sent Nelson Butler to school until the time of her death'; that she was regarded by him as his natural mother and he was treated by her 'in all respects as her natural child with all the rights and privileges inuring to him, including the right to inherit'; and that she 'had some kind of adoption papers prepared by some lawyer' but after diligent search they cannot be found. It is further alleged in the complaint that these facts and circumstances created the status of an adopted son, with all the attendant benefits and privileges 'in that equity regards that as done which ought to have been done'; and that 'Nelson Butler is the sole and proper beneficiary in this action.' (The complaint does not disclose his present age.)

Section 412 of the Code provides that an action of this kind 'shall be for the benefit of the wife or husband and child, or children, of the person whose death shall have been so caused; and if there be no such wife, or husband, or child, or children, then for the benefit of the parent or parents; and if there be none such, then for the benefit of the heirs at law or the distributees of the person whose death shall have been caused * * * 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.'

'At common law there was no right of action for death caused by wrongful act'. Tollerson v. Atlantic Coast Line Railway Co., 188 S.C. 67, 198 S.E. 164, 165. While such an action is now permitted, the foregoing section of the code distinctly specifies the persons or classes of persons for whose benefit it may be brought. There can be no recovery under this statute unless at the time of the decedent's death there are one or more of the designated beneficiaries in existence. If there are none, the common law principle governs. Unless the complaint affirmatively shows that there is such a beneficiary, it is demurrable. Lilly v. Railroad Co., 32 S.C. 142, 10 S.E. 932; Nohrden v. Northeastern Railroad Co., 54 S.C. 492, 32 S.E. 524; Kitchen v. Southern Railway Co., 68 S.C. 554, 48 S.E. 4, 1 Ann. Cas. 747; Kennemore v. South Carolina State Highway Department, 199 S.C. 85, 18 S.E.2d 611; Hennegan v. Atlantic Coast Line Railway Co., 211 S.C. 357, 45 S.E.2d 331.

The precise question for determination is whether under the facts alleged in the complaint Nelson Butler was a 'child' of Odessa Jackson within the meaning of Section 412 of the Code. We shall assume for the purpose of this discussion that the word 'child' includes an adopted child.

Section 8679 of the Code of 1942 prescribes the procedure to be followed where one desires to adopt a child and confer upon it the right to inherit as a lawful child. It requires the filing of a petition in the court of common pleas, the appointment of a guardian ad litem for the child sought to be adopted, and an examination into the merits of such petition. It was held...