Rushton v. South Carolina State Highway Dept.

• Decision Date: 12 June 1945
• Docket Number: 15745.
• Citation: 34 S.E.2d 484,207 S.C. 112
• Parties: RUSHTON v. SOUTH CAROLINA STATE HIGHWAY DEPT.
• Court: South Carolina Supreme Court

34 S.E.2d 484

207 S.C. 112

RUSHTON v. SOUTH CAROLINA STATE HIGHWAY DEPT.

No. 15745.

Supreme Court of South Carolina

June 12, 1945

A. L. King, of Georgetown, for appellant.

John M. Daniel, Atty. Gen., and M. J. Hough and T. C. Callison Asst. Attys. Gen., for respondent.

STUKES Justice.

Appellant's intestate lost his life on December 9, 1941, in an accident on Highway No. 701 in Georgetown County. Appellant qualified as administrator of the estate and brought action against the State Highway Department, for the benefit of the three minor children of the deceased, by summons and complaint dated January 7, 1942. The suit papers were mailed to the respondent Department which accepted service of them on January 9, 1942.

Respondent answered on January 22, 1942, admitting certain of the allegations of the complaint but denying negligence and alleging sole and contributory negligence and wilfulness on the part of the deceased. There was no reference in the answer to appellant's failure to file a prior claim. The case was docketed for trial by jury but before it was reached and after six months had elapsed from the time of the accident, quoting from the Statement in the agreed transcript of record for appeal: 'Before the case was called for trial the question was raised verbally as to the alleged failure of plaintiff to comply with Section 5887 of the South Carolina Code of Laws, and by mutual consent the case was carried over.'

Upon subsequent call of the case for trial at the April, 1944 term of the Court, and after notice, respondent demurred to the complaint upon several grounds, to wit, first that no claim was filed by appellant against respondent within the statutory period, as provided in section 5887 of the 1942 Code; second, that Joint Resolution No. 224 of the Acts of 1943, 43 St. at Large, p. 478, purporting to 'validate' the suit is unconstitutional for undertaking to grant a special privilege, denied to other citizens; third, that the resolution is also unconstitutional for the reason that it was a special law in violation of article 3, section 34, subdivision 9 of the Constitution; and fourth, that the resolution was passed subsequently to the origin of the alleged cause of action and was without retroactive force.

The Circuit Court sustained the demurrer upon the first and third grounds, just stated, and held that the complaint was fatally defective for failure to allege that a claim in conformity with subdivision 3 of section 5887 of the Code was filed, and cited the cases of United States Casualty Co. v. Highway Department, 155 S.C. 77, 151 S.E. 887, and Ancrum v Highway Department, 162 S.C. 504, 161 S.E. 98. And it was further held that under the cases of Ouzts v. Highway Department, 161 S.C. 21, 159 S.E. 457, and Kennemore v. Highway Department, 199 S.C. 85, 18 S.E.2d 611, the complaint had been rendered incapable of amendment to cure the deficiency by the passage of time. The joint resolution No. 224 of 1943, referred to above, was declared void as a special act, in violation of the pertinent section of the constitution. Thereupon it was concluded in the judgment under appeal that the demurrer should be, and it was, sustained on the first and third grounds, stated above, and that under those circumstances it was unnecessary to consider the other grounds. Thus the latter passed out of the case.

Plaintiff appealed and his exceptions to this Court properly raise the points (1) that the service of the verified complaint and summons upon the respondent within about a month after the alleged cause of action arose made unnecessary the filing of claim required by the statute involved, No. 5887 of the Code of 1942, and (2) that the lower Court erred in holding that joint resolution No. 224 of the General Assembly of 1943 was unconstitutional and therefore invalid. However, the conclusion we reach makes unnecessary the consideration of appellant's second point. We are convinced that the first proposition should, and it will, be answered favorably to appellant. In view of the commencement of the action within the time allowed for the filing of claim, the latter act was not requisite, and allegation of it in the complaint similarly unnecessary to the statement of the cause of action, hence the complaint was not demurrable on that ground.

The former decisions of this Court which are relied upon by respondent are quite clear, and their authority free from doubt, that under the statute which is now section 5887 of the Code of 1942 it was necessary that claims be filed before those suits could be tried, but none of the cases appears to have involved an action brought within the time of the present claim period (differentiating them from this) except that of Owens v. Highway Department (165 S.C. 180, 163 S.E. 473), which was commenced about as promptly after injury as was this. But it was brought under the Act of 1925, 34 St. at Large, p. 287, which did not require the filing of claim at all. It was tried after the enactment of 1928 (the present law, with subsequent amendments) which was therefore applicable. Judgment for plaintiff was reversed on appeal but the case was remanded with leave to him to thereafter file his claim with the Department and proceed to supplement his complaint accordingly. Similar disposition of like appeals of the Department was made in the cases of Fann v. Highway Department, 155 S.C. 219, 152 S.E. 429, and Bynum v. Highway Department, 156 S.C. 232, 153 S.E. 165. It is seen that these decisions are not authority for the harsh result for which respondent contends in the case at bar.

It is apparent that the object of the requirement of the filing of claim within a short period is to put the Highway Department on notice and enable it to make such investigation as it thinks necessary, when the facts are fresh and evidence may be preserved, but that purpose was accomplished in this instance by the service of the sworn complaint when only about one-sixth of the period allowed for claims had passed. The Department was in better position than it might have been even had there been a literal following of the statute. The original complaint was exhibited to the Court upon the hearing of argument on appeal and it contains all of the information which is required by the statute to be included in a claim.

A contrary construction would be within the words of Mr. Justice Cothran in his concurring (in result) opinion in United States Casualty Co. v. State Highway Department, supra [155 S.C. 77, 151 S.E. 892], upon another issue of that case, as follows: 'I think that this is an exceedingly narrow and unjustified contraction of the purpose of the act, which evidently was that the department should be held responsible for the consequences of its delicts.'

For convenience in examination, the pertinent portion of the statute (before the amendment of 1944) is set forth, as follows: 'A claim giving the date, place where the injury or...