Free v. Southern Ry.

September 3, 1907. The opinion of the Court was delivered by Jules Free, an employee of the Southern Railway Company, was killed by one of its engines in September, 1904 at Charlotte, N.C.

His father, John Free, qualified as administrator in this State and brought this action to recover damages. The complaint contains this allegation: "That under the law of the State of North Carolina, known as the Lord Campbell Act, the defendant, by the said wrongful killing of Jules Free, became liable to this plaintiff as administrator, for the benefit of his parents, for the damages caused by the said wrongful conduct, and that said plaintiff, as such administrator, was thereby damaged in the sum of two thousand dollars, for which he asks judgment."

A nonsuit was granted on the grounds that there was no proof of a statute in North Carolina allowing such a suit for the benefit of parents of the person killed.

The following statute of North Carolina was admitted: "That any servant or employee of any railroad company operating in this State, who shall suffer injury to his person, or the personal representative of any servant or employee who shall have suffered death, in the course of his service or employment with said company, by the negligence, carelessness, or incapacity of any servant, employee, or agent of the company, or by any defect in the machinery, ways, or appliances of the company, shall be entitled to maintain an action against such company."

The plaintiff attempted to prove the statute law of North Carolina provided that such an action as this should be brought for the benefit of parents, by introducing the reports of the Supreme Court of North Carolina. A statute of a sister State cannot be so proved in the Courts of this State. Nothing less than printed copies of the volume containing the statute, purporting to have been published by the State authority will be taken as evidence. Civil Code, sec. 2890.

The Circuit Judge was, therefore, right in holding that the only statute law of North Carolina before the Court was the statute above quoted. An examination of the case ofKillian v. Ry. Co., 38 S.E., 873, on which the plaintiff relied, shows that he was also right in holding that that case does not state the law of North Carolina to be that an action like this is to be brought for the benefit of the parents.

For the purposes of this case, therefore, the statute law of North Carolina must be taken as giving a right of action to the personal representative of the person who shall have suffered death in the manner laid down in the statute above quoted, without providing for any special beneficiary.

The case, then, is this: The plaintiff in bringing this action as the administrator of Jules Free, made allegations complete and sufficient in all respects under the statute, except he erroneously alleged the defendant became liable to him as administrator of Jules Free, for thebenefit of his parents. The Circuit Judge granted the nonsuit on the ground that the use in the complaint of the words "for the benefit of his parents," was a fatal departure from the statute. We are unable to assent to this view. If the plaintiff, as administrator, was entitled to recover, his recovery should not be defeated because he has erroneously alleged, he must hold his recovery for the benefit of certain persons. Under the statute of North Carolina, as proved, a complete cause of action was stated in the complaint, without the reference to the supposed beneficiary, and that should have been regarded as mere surplusage. This conclusion rests well on the reasoning of Mr. Justice Jones in Morris v. Gas Elec. Co., 70 S.C. 281, 49 S.E., 854: "The statute is remedial and should be liberally construed so as to accomplish its object. It was designed to remove the common law rule, founded on the maxim, actio personalismoritur cum persona, as an obstacle to the recovery of damages for the death of a party by a wrongful act, neglect, or default of another, and to create a right of action in the administrator of the deceased for the benefit of the person named in the statute. In re Estate Mayo, 60 S.C. 401,38 S.E., 634; 54 L.R.A., 660. The award of damages for the wrongful death is the important matter, the manner of distribution is of secondary consideration." The case ofLilly v. Ry. Co., 32 S.C. 142, was obviously different, and we think the doctrine of that case should not be extended.

The defendant contends, however, that the law of North Carolina, as proved in this case, is essentially different from the law of this State, in that it does not designate the persons for whose benefit the administrator is allowed to recover, while the corresponding statute of this State provided for distribution among certain kindred of the deceased.

As indicated in Morris v. Gas Elec. Co., supra, the essential thing in the varying statutes of the several States is the same, namely, the giving of a right of action to the administrator or some other person interested in the life of the deceased in his own behalf or as trustee for others. Any variance as to the beneficiaries and the method of distribution ought to be regarded as a minor difference.

It was held in Dennick v. Central R.R. Co.,103 U.S. 11, 18, 26 L.Ed., 439: "Wherever, either by the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any Court which has jurisdiction of such matters and can obtain jurisdiction of the parties. * * * If the liability to pay money was fixed by the law of the State where the transaction occurred, is it to be said it can be enforced nowhere else, because it depended upon statute law and not upon common law? It would be a very dangerous doctrine to establish, that in all cases where the several States have established the statute for the common law, the liability can be enforced in no other State but that where the statute was enacted and the transaction occurred." After much judicial discussion, the authority and reasoning of this case is now generally recognized with this qualification, that the Courts of one State will not recognize a cause of action arising in another State, when the statute of such other State giving the right of action is contrary to the public policy of the State where the action is brought. Dennis v. R.R. Co., 70 S.C. 257,49 S.E., 869; Huntington v. Attrill, 146 U.S. 657; Stewart v. R.R. Co., 168 U.S. 445; Texas c. R.R. Co. v. Cox,145 U.S. 593; Leonard v. Columbia S.E. Co.,84 N.Y., 48, 38 Am. Rep., 491; Higgins v. Central N.E. W.R.R.Co. (Mass.), 29 N.E., 534. The numerous other Federal and State cases to the same effect will be found collated in 14 Am. State Rep., 354; 10 Roses Notes on U.S. Reports 3, 3rd Sup., Ib., 856.

The North Carolina statute on which this action rests is entirely consistent with the public policy of this State as expressed in its statute giving a right of action in such case to the personal representative of the deceased; and it is not opposed to the public policy of this State because in the subordinate matter of distribution the South Carolina statute names the beneficiaries, and the North Carolina statute, as proved, leaves the recovery in the hands of the administrator for general distribution.

It is true the plaintiff's exception does not set out as clearly as is desired the error which we think was committed in granting the nonsuit. But exceptions should be liberally construed where they do not mislead or surprise opposing counsel. Looking at the exception in that light, it does raise the question that a nonsuit should not have been granted for failure to prove, by the printed volume of the statute of North Carolina, that any recovery by the administrator would be for the benefit of the parents. Respondent's counsel was not surprised nor misled, for the point on which we think the judgment should be reversed was fully and ably argued by him.

The defendant has given due notice that he would ask to have the nonsuit sustained on the additional grounds (1) that there was no proof of negligence by the defendant; and, (2) that no other inference could be drawn from the evidence than that he plaintiff was guilty of contributory negligence.

Defendant offered no evidence, and plaintiff's witnesses were in substantial agreement as to the circumstances of the killing. Jules Free was a boy employed to carry water to a gang of hands working near the station at Charlotte, N.C. As Free was returning across the tracks with water, his attention, attracted by an approaching freight train, he was struck and killed by a switch engine coming from the opposite direction on another track. Witnesses variously estimated the speed of the switch engine at from twenty to thirty-five miles an hour, and they all testified there was no watchman on its pilot and no warning of its approach by bell or whistle. From this evidence the jury might well infer the defendant was negligent in running its switch engine at such a rate of speed in a yard where there were several tracks and the confusion of other moving trains, without a guard on the pilot and without signals; and that in these circumstances, the unfortunate boy in crossing the track in the discharge of the duty assigned to him was not guilty of contributory negligence in not seeing the engine and getting out of its way.

The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.