DocketNumber: 16078
Citation Numbers: 47 S.E.2d 725, 212 S.C. 332, 1948 S.C. LEXIS 54
Judges: Oxner, Baker, Fishburne, Syukes, Taylor
Filed Date: 5/10/1948
Status: Precedential
Modified Date: 10/19/2024
May 10, 1948. 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 *Page 334 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 *Page 335 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. AtlanticCoast Line Railway Co.,
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 *Page 336
adopted, and an examination into the merits of such petition. It was held in Hatchell et al. v. Norton et al.,
We think the foregoing case is decisive of the issue before us. Appellant seeks to distinguish it upon the ground that there the child was claiming the right to inherit from his alleged adoptive parent, while in the instant case the question arises upon a claim for damages on account of the alleged wrongful death of the adoptive parent. But we do not think this distinction aids appellant. There was a much stronger reason in the Hatchell case for holding that the child occupied in equity the status of an adopted child than exists in the case before us. The controversy there was between the child and the widow and natural children of the person who had contracted to adopt him. Here it is sought to make a third person, not in privity with deceased, respond in damages upon the theory that the child, although not a legally adopted child, is entitled to recover from such third person by reason of the acts of the deceased. *Page 337
We are compelled to conclude that Nelson Butler does not occupy the status of a child of Odessa Jackson so as to enable him to maintain an action for her alleged wrongful death.
It may be of interest to state that a similar conclusion was reached by the Court of Civil Appeals of Texas in the case of Deatherage v. Fort Worth D.C. Railroad Co.,
Judgment affirmed.
BAKER, C.J., and FISHBURNE, STUKES and TAYLOR, JJ., concur.
Hennegan v. Atlantic Coast Line R. , 211 S.C. 357 ( 1947 )
Kitchen v. Southern Ry. , 68 S.C. 554 ( 1904 )
Kennemore v. South Carolina State Highway Department , 199 S.C. 85 ( 1942 )
Tollerson v. Atlantic Coast Line R. Co. , 188 S.C. 67 ( 1938 )
Lealaimatafao v. Woodward-Clyde Consultants , 75 Haw. 544 ( 1994 )
Coon Ex Rel. Coon v. American Compressed Steel , 2004 Mo. App. LEXIS 130 ( 2004 )
Sellers v. Lewis & Holmes Motor Freight Corp. , 215 S.C. 256 ( 1949 )
Bower v. Landa , 78 Nev. 246 ( 1962 )
Ridgeland Box Mfg. Co. v. Sinclair Refining Co. , 82 F. Supp. 274 ( 1949 )
Padgett v. Padgett , 88 F. Supp. 630 ( 1950 )
Herrera Ex Rel. Mota v. Glau , 13 Brief Times Rptr. 275 ( 1989 )