Opinion
14727
July 20, 1938.
Before OXNER, J., Richland, August, 1936. Affirmed.
Action by Ida B. Tollerson against the Atlantic Coast Line Railroad Company, for damages resulting from the death of plaintiff's son. From a judgment sustaining a demurrer to the petition, plaintiff appeals.
The order of Judge Oxner, requested to be published, follows:
This matter comes before me on demurrer interposed by defendant. At the conclusion of the oral arguments the Court suggested written arguments. On account of other engagements there was considerable delay on the part of counsel for defendant in filing his argument, which largely accounts for the delay in disposing of this matter.
So far as the issues raised on demurrer are concerned, the pertinent allegations of the complaint, briefly stated, are that Charlie Johnson, alias Charlie Springs, on April 30, 1928, while discharging his duties as an employee of defendant on a bridge across Roanoke River at Weldon, North Carolina, through the negligence and recklessness of defendant, was knocked into the river causing his death. Plaintiff alleges that at such time the said Charlie Johnson, alias Charlie Springs, was a minor, unmarried, and having no father or other family other than the plaintiff, who is his mother, and with whom he usually resided. Plaintiff further alleges that his injuries and death resulted in loss to her as his mother "of the services and companionship of her son, of his contributions to her support, of his funeral expenses and the cost and expense of travel and other items necessarily incurred and paid by her, and of great grief, mental anguish, and suffering on her part because of the aforesaid wrongs, injuries and damage to her son," to her damage in the sum of $2,999.00.
The demurrer raises the question as to whether or not the plaintiff in her individual capacity can maintain this action, and this depends upon the further question as to whether or not at common law an action may be maintained by a parent for the loss of prospective services of a minor until he reaches his majority and for his funeral and other expenses leading thereto, where he meets death by the wrongful act of another.
At the time this action was commenced on January 4, 1934, the statutory limit for the commencement of an action under "Lord Campbell's Act" of North Carolina [Code N.C., 1935, § 160] (limitation of one year) and under the Federal Employers' Liability Act [45 U.S.C.A., § 56] (limitation of two years) had expired. (In justice to counsel for plaintiff it should be stated that such time limit had expired prior to the time of their employment).
"At common law there was no right of action for death caused by wrongful act." Dennis v. Atlantic Coast Line R.R., 70 S.C. 254, 49 S.E., 869, 870, 106 Am. St. Rep., 746. There are numerous other South Carolina cases sustaining the foregoing statement. Indeed, it is now elementary in this as well as other jurisdictions. "Although the rule has been criticized as being technical and without the support of sound principle, it is too firmly established to be longer open to question." 17 C.J., 1181.
Counsel for plaintiff frankly concedes that there is no cause of action for death itself at common law, but he contends there is an exception to the common-law rule which permits an action to be maintained by a parent for loss of services resulting from the death of the minor, and for funeral expenses, etc. Counsel states that while there are some cases to the contrary, the great weight of authority sustains such exception. I have carefully read the authorities cited by counsel and have made quite an extended investigation of the authorities on this subject. Such careful study clearly leads me to the conclusion that the overwhelming weight of authority is to the effect that such action cannot be maintained for prospective services until the minor reaches his majority, and that there are comparatively few jurisdictions holding to the contrary. The decisions on this question have been so well reviewed and discussed in certain annotations hereinafter referred to that I shall not prolong this order with a review of them. An extended annotation will be found in 41 L.R.A., 807. In his written argument many of the cases relied on by plaintiff are from the State of Georgia. The Courts of Georgia are among the rare jurisdictions sustaining the contention of plaintiff. In referring to these decisions, the annotator says (41 L.R.A., at page 814): "While the Georgia rule as shown by the Georgia cases set forth supra, II, would seem to be firmly fixed and well settled, it would appear that outside of that state the rule that there is no common-law right of action by a parent for loss of services of his child killed by the wrongful act of another must be regarded as the true doctrine." Another extended annotation is contained in 48 Am. Dec., at page 632. It is there stated (pages 632, 633): "It is settled, as laid down in the principal case, notwithstanding the vigorous dissent of some eminent Judges, that at the common law no action will lie for damages caused by the death of a human being, by the wrongful or negligent act of another, however close may be the relation between the deceased and the plaintiff, and however grievous the loss. * * * Not only is there, without the aid of a statute, no civil remedy for the death itself, but no action will lie, for loss of service, etc., caused by the death, as is abundantly shown in the cases above cited. Where a child is disabled for a few days by the wrongful act or negligence of the defendant, the father may recover for the loss of service; but if the child is killed by the injury, and the father is forever deprived of his services, he has no remedy." The rule is stated in 8 R.C.L., 719, as follows: "Not only is there, without the aid of a statute, no civil remedy for the death itself, but no action will lie for loss or services, etc., caused by the death. For instance, if a child is disabled for a time by a wrongful or negligent act, the parent may recover from the tortfeasor for the loss of services, even though death eventually results from such wrongful act, yet where the service is determined altogether by the child's instantaneous death the parent is wholly without remedy."
One of the most well-considered cases on the subject is that of Stevenson v. Ritter Lumber Co., 108 Va., 575, 62 S.E., 351, 18 L.R.A. (N.S.), 316.
It is interesting to observe that in North Carolina where death in the instant case occurred there could have been no recovery at common law. Killian v. Southern Ry. Co., 128 N.C. 261, 38 S.E., 873. The action in that case was similar to the action here except it was instituted by the father. The Court said: "It is true, the father was entitled to the services of his son, if he had lived, till his majority, but when the death of the son ensued the cause of action abated."
Since this action under the foregoing case could not have been maintained in North Carolina where the injury and death occurred, an interesting question arises as to whether it could be maintained here, even though our Courts permitted such action. 5 R.C.L., 1038. Inasmuch, however, as the action is not maintainable here, it is not necessary to pass upon this question.
Counsel for plaintiff earnestly contends that there is certain language in our own case of Edgar v. Castello, 14 S.C. 20, 37 Am. Rep., 714, tending to sustain his position. I have carefully studied this case and I find nothing therein to give comfort to the contention of plaintiff. On the contrary, I find that it is in harmony with the great weight of authority elsewhere, and, apart from decisions of other Courts, is conclusive against plaintiff's contention.
Plaintiff also seeks to recover funeral and other expenses incident to her son's death. The Courts are somewhat divided on this question. In 8 R.C.L., 719, we find: "According to some authorities, burial expenses being caused by the death cannot be recovered at common law, but the contrary view is taken in some decisions on the ground that while in one sense they may have ensued from the death, they are more strictly speaking a financial loss resulting directly from the negligent acts of another." Also see note 9 L.R.A. (N.S.), 1193. The case of Philby v. Northern Pac. R. Co., 46 Wn., 173, 89 P., 468, 9 L.R.A. (N.S.), 1193, 123 Am. St. Rep., 926, 13 Ann. Cas., 742, sustains the recovery of funeral expenses. That case, however, is hardly applicable here because the decisions of that jurisdiction did not permit the recovery of funeral expenses under Lord Campbell's Act. Such expenses can be recovered in this State in an action under this statute. Petrie v. Columbia G.R. Co., 29 S.C. 303, 7 S.E., 515. This being so, I do not think they may be recovered in this action. Apart from this, the question of recovery of funeral expenses is settled against plaintiff in Edgar v. Castello, supra. In that case the Court said: "As to the funeral expenses, in addition to the fact that there is no allegation upon which to base a claim for such damages, we find that it has been distinctly decided in the recent case of Osborn v. Gillett, L.R., 8 Exch., 88, that a father could not maintain an action for injuries which caused the immediate death of his child, either upon the ground of loss of services or for burial expenses."
The case of Pennsylvania Railroad Co. v. Bantom, 54 Pa., 495; Owen v. Brockschmidt, 54 Mo., 285, which were cited by appellant to sustain the proposition that the plaintiff was entitled to a verdict for the amount proved to have been necessarily expended for funeral and other expenses incurred by reason of the killing of the child, prove to be cases arising under special statutes of those states, and are, therefore, inapplicable here.
The only remaining element of damages necessary to refer to is loss of services from the time of the injury to death. While there are cases to the contrary, the weight of authority seems to sustain recovery for any loss of services to the parent from the time of the injury to death. Such claim does not arise as a result of death, but has accrued at the time of death. In 8 R.C.L., 721, the rule is stated as follows: "Where the death of a wife or child by a tort is not instantaneous, a husband or father may undoubtedly recover, without the aid of any statute, for loss of services and for medical and other expenses up to the time of the death." In 17 C.J., 1183, it is found: "So where the death of a wife or child, caused by wrongful act is not instantaneous, the husband or father may recover for the loss of services and for medical and other expenses up to the time of death, without the aid of any statute, extending even to the recovery of funeral expenses, in some jurisdictions, but not in others. But there can be no recovery for services in such a case if the time between the injury and the death is so short as to render the services during that time worth too little to be taken notice of by the law." Also see annotations in 41 L.R.A., 811, hereinabove referred to.
The complaint alleges that plaintiff's son was knocked into the river, "which blows, injuries and drowning occasioned thereby, some time thereafter produced" his death. It is very doubtful if the complaint could be construed as seeking to recover for loss of services from time of injury to death. If, as alleged, the son was drowned, no appreciable time could have elapsed between injury and death. However, this is immaterial for plaintiff's counsel concedes for the purpose of this record that death was instantaneous.
In conclusion, it is to be regretted that the only claim which could have been asserted by this mother is now barred by lapse of time. Because of the unusual circumstances I have given this question most serious throught, but find myself unable to afford any relief.
For the foregoing reasons, it is ordered that the demurrer be, and the same hereby is, sustained.
Mr. M.W. Seabrook, for appellant, cites: What law governs: 183 S.C. 495; 191 S.E., 416; 70 S.C. 254; 49 S.E., 869; 37 C.J., 729; 194 U.S. 451; 24 S.Ct., 692; 48 L.Ed., 1067; 73 S.E., 167; 153 S.E., 602; 125 S.E., 387; 172 S.E., 329; 62 S.E., 899; 66 S.E., 586; 157 S.E., 11. Right of action under common law for loss of son's services: 90 S.E., 809; L.R.A., 1917-B, 708; 126 S.E., 307; 38 S.E., 873; 89 P., 468; 9 L.R.A. (N.S.), 1193; 25 P.2d 99; 219 P., 12; 212 P., 283; 87 P., 824; 8 P., 705; 13 S.W. 801; 7 L.R.A., 283. Right to recover funeral expenses: 43 S.C. 224; 20 S.E., 979; 158 S.C. 307; 155 S.E., 429; 4 McCord, 20; 15 S.C.L., 20; 40 L.R.A., 253; 29 S.E., 219; 31 S.E., 42; 60 Am. Dec., 698; 93 S.E., 240; 14 S.C. 20.
Messrs. Douglas McKay and J.A. Manning, for respondent, cite: Lex fori: 11 A.J., 170; 61 S.E., 1064; 44 S.E., 574.
July 20, 1938. The opinion of the Court was delivered by
The appellant brought action to recover damages of the respondent for the death of her son, caused by the alleged negligence, and willful, reckless and wanton conduct of the respondent. She claims damages for the loss of the services of her son, who was a minor, and for the loss of his companionship, for his contributions to her support, for the expenses for his funeral, and for other expenses necessarily incurred and paid by her, and for mental anguish.
The defendant demurred to the complaint on two grounds, to wit:
"1. That the plaintiff has not legal capacity to sue, since a suit for the recovery of any of the elements of damages set forth in said complaint, whether responsive to an action under Lord Campbell's Act, or under the Survival Statute, must be brought by the administrator or administratrix of deceased's estate.
"2. That several causes of action have been improperly united in said complaint, since the complaint attempts to set up elements of damages that are responsive to a cause of action under Lord Campbell's Act and to a cause of action under the Survival Statute, which causes of action cannot be joined."
The cause was heard by Circuit Judge Oxner, who sustained the demurrer in a well considered decree.
The plaintiff appeals upon six exceptions, the gravamen of all of them being that in this State a parent may maintain an action for the prospective services of a minor child until he reaches his majority, and for his funeral expenses and other expenses incident to his death, when that is caused by the willful act of another; that such action may be maintained under an exception to the ancient common-law rule against recovery of civil damages for a wrongful death.
In an able and ingenious argument, appellant's attorney urges his proposition. However, after careful consideration thereof, we are satisfied that Judge Oxner's decree is in accord with the fixed rule of this jurisdiction. Accordingly it is affirmed. Let it be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE A.L. GASTON concur.
MR. JUSTICE CARTER did not participate on account of illness.