Summary
In Langford v. Railroad, 144 Mass. 431, Morton, C. J., says, — "The entry of a nolle prosequi by the district attorney of his own motion, followed by a discharge of the accused party by the court, may be such a termination of the prosecution as will enable the party to maintain an action for malicious prosecution."
Summary of this case from Woodman v. PrescottOpinion
12572
January 30, 1929.
Before DeVORE, J., Jasper, December, 1927. Affirmed.
Action by G.L. Langford against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.
Mr. W.N. Heyward, for appellant, cites: 84 S.C. 206. Contributory negligence: 20 R.C.L., 142; 79 S.C. 165; 19 Eng. Rul. Cas., 189. Same defeats recovery: 142 S.C. 523. As to invitees: 141 S.C. 453. As to proximate cause: 140 S.C. 168. Willfulness: 137 S.C. 359.
Mr. H. Klugh Purdy, for respondent, cites: Contributory negligence no bar to recovery here: 137 S.C. 359. Distinguished: 141 S.C. 453. Proximate cause: 146 S.C. 28. Actionable negligence here: 72 S.C. 380.
January 30, 1929. The opinion of the Court was delivered by
"This is an action for damages for personal injury. The defendant gave due notice of its intention to demur to the complaint on ground that is did not state facts sufficient to constitute a cause of action and the demurrer was heard by the Honorable J.W. DeVore, presiding Judge at the December term of the Court of Common Pleas for Jasper County and overruled, whereupon due notice was given of appeal to the Supreme Court of South Carolina."
The exceptions, two in number, raise two questions: First, plaintiff's contributory negligence; second, the cause of injury is too remote for recovery. The demurrer admits the allegations of the complaint.
The complaint does not show that the acts of the plaintiff constituted contributory negligence. This Court said in the case of Monroe v. A.C.L. Ry. Co., 137 S.C. p. 357, 135 S.E., 472: "If the plaintiff was guilty of contributory negligence, that would not be a defense and defeat his recovery where the defendant acts willfully, wantonly, or recklessly, unless he was guilty of gross or criminal negligence or acting in violation of law."
All exceptions are overruled and judgment affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.