90 S.E. 704 | S.C. | 1916
Lead Opinion
November 10, 1916. The opinion of the Court was delivered by
This is an action by the administratrix, in favor of the beneficiaries under the statute, for death by the wrongful act. Code 1912, secs. 3955-3958. The defendant pleaded a release executed by the deceased in his lifetime, as a bar to recovery. The plaintiff demurred to the defense. The Circuit Judge, Ernest Moore, overruled the demurrer under the case of Price v. Railroad Company,
The order overruling the demurrer is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE HYDRICK concur in the opinion of the Court.
Dissenting Opinion
The appeal is by the plaintiff from an order of the Circuit Court. The plaintiff demurred to a defense pleaded in bar; and the Court overruled the demurrer and sustained the defense. The pleadings allege that one Henry V. Rish, husband of the plaintiff and father of their three infant children, were a passenger on a Seaboard train which went into a head-on collision with another Seaboard train on October 19, 1913; that Henry V. Rish was injured in his body thereby; that three days thereafter the company paid him $25, and took from him a formal release from all further liability; that Rish died thereafter as the result of the injuries to him, but the date of his death is not alleged, and does not appear in the case. The Circuit Court, in effect, held that the release referred to was a bar to the present action brought by the widow under Lord Campbell's Act, and that is the single issue to be now reviewed. *146
The Court very properly rested its opinion on the Price case found in
It is true that when the act of 1859 (Lord Campbell) gave the action, it may also have limited it; and, had that act declared that a release by the injured person in his lifetime would bar the action after the death by a beneficiary, then that would have concluded the beneficiary. But since it is now well settled that the wrong to the injured person living is one thing and the wrong to his dependents, he being dead, is another thing, the remedy for the last may not be defeated except by plain words or necessary implication. Lord Campbell's statute as re-enacted by this State (section 3955,et seq., Code) has three essential and distinct features, to wit: (1) The grant of a cause of action where none exists before section 3955; (2) the designation of beneficiaries of that cause of action, section 3956; and (3) the limitation upon that cause of action, section 3958.
It is true the words of the first section referred to do give the action "whenever * * * the default is such as would, if death had not ensured, have entitled the party injured to maintain an action and recover damages," etc. But that plainly means that the beneficiary shall have no suit unless *148 the "act of another" was, at the outstart, wrongful to the "person." Until the statute, it was settled what acts to the person were wrongful, but not whether the remedy would persist. The statute provided that when those acts were wrongful in law, and the person against whom they were done should suffer death by them, yet nevertheless the right of action should not lie, but should persist. The injured person, in the very nature of the case, could not be compensated for his own death; but only for injuries to his life. In the event of his death the beneficiaries might sue if the "act of another" was the cause of the injury and death, and, therefore, had created a cause of action. The first feature of the statute, therefore, was dealing with a cause of action, which is the legal wrong of one person to another person; it was dealing with the wrong, and not with the reparation of a wrong; with an action, and not with limitations upon it or defenses to it. The third feature of the statute confirms this interpretation. It expressly declares that the right of action given by the first feature "shall not apply to any case where the person injured has, for such injury, brought action, which has proceeded to trial and final judgment before his or her death." That is equivalent to saying, it shall apply to all other cases. The third feature, which is section 3958, was not in the English statute. If it shall be necessary to inquire why a right may be concluded by a trial and judgment, and not by compromise and settlement, the instant case suggests an answer. A trial is:
"The examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such cause." Black's Law Dictionary.
Bouvier defines a trial to be:
"The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue." *149
The trial involves publicity; the Courts are public, and must be. The deceased in the instant case was entitled in his lifetime to have a trial in open Court of how seriously if at all he was injured by the fault of the defendant; and the verdict of a jury and the judgment of a Court are alone made conclusive of those issues. That has not been had; but, in the place of it, there is offered a receipt by the deceased for $25, given three days after the injury, and a release of the wrongdoer from all further liability. A settlement under such circumstances offers the gravest opportunity and temptation for overreaching, and it was to prevent such a consummation that the statute was made. If a friendly compromise was desired — and it ought generally to be — the Courts were open for a public inquiry about the issues involved, and a final judgment upon them. We are, therefore, clearly of the opinion that Price v. Railroad is not a right interpretation of the statute; and the only other issue is, ought it to be overruled or ought it to be followed? As before stated the issue decided in that case has not been hitherto followed here, though the case has been cited to illustrate and explain issues nearly akin to it. The decision lays down no rule of property. It does not announce a rule of procedure. It does not affect the liberty of the citizen. There is not possibility that a contrary interpretation of the statute will affect settlements which may be made after the decision of the instant case. A serious wrong would be done to persons, in transactions hereafter to arise, to give to the statute a manifestly wrong interpretation. It is true that Price's case was decided 25 years ago, and the lawmaking power has not, in the following period, altered our interpretation of its statute. But the force and effect of that decision was largely dissipated by a subsequent decision in the same cause, which permitted the plaintiff to show that the release was invalid.
Applying the rules laid down in State v. Aiken,
MR. JUSTICE WATTS concurs in the dissenting opinion announced by MR. JUSTICE GAGE.