Rish v. Seaboard Air Line Ry.

90 S.E. 704, 106 S.C. 143, 1916 S.C. LEXIS 283

Opinions

The opinion of the Court was delivered by

Mr. Justice Fraser.

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, 33 S. C. 556, 12 S. E. 413, 26 Am. St. Rep. 700. Unless the Price case is overruled, the order appealed from must be affirmed. We see no reason to overrule the Price case. The Price case is correct. The statute gives a right of action where none existed before, and limited the right of recovery to those cases in which the party injured would have been entitled to recover, if death had not ensued. In this case the deceased could not have recovered, because he had. released the defendant. Therefore the beneficiaries under the statute cannot recover. The legislature has twice amended the statute since the Price case was decided; and, if it had intended the law to be different, it would, no doubt, have so amended the statute as to make its intention clear. Of course, no ruling is made as to the validity of the release as that question has not been raised.,

The order overruling the demurrer is affirmed.

Mr. Chibe Justice Gary and Mr. Justice Hydrick concur in the opinion of the Court.

Footnotes

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Footnote.—As to effect of release by deceased on beneficiary’s right to recover for death by wrongful act, see 34 L. R. A. 790, 35 L. R. A. 196, 50 L. R. A. 694r — L. R. A. 1915e, 1170, 1 A. & E. Ann. Cas. 232, 70 Am. St. Rep. 666, 34 A. & E. Ann. Cas. 1914d, 498.