All v. Barnwell County

• Decision Date: 18 July 1888
• Citation: 29 S.C. 161,7 S.E. 58
• Parties: All v. Barnwell County.
• Court: South Carolina Supreme Court

7 S.E. 58

(29 S.C. 161)

All

v.Barnwell County.

Supreme Court of South Carolina.

July 18, 1888.

1. Counties—Liability for Defective Highways—Death of Person Injured.

Gen. St. S. C. § 2183, enacted in 1859, providing that when the death of one person shall be caused by the wrongful act, neglect, or default of another, which would have been actionable had death not ensued, the person or corporation who would have been liable if death had Dot resulted shall be liable to the personal representative of the deceased for damages for such death, for the benefit of the surviving wife, husband, or children of the person so killed, does not apply to a case under Gen. St. S. C. § 1087, enacted in 1874, which gives to a person injured by a defect in a highway or bridge a right of action against the county wherein such bridge is situated, and in such case the right of action dies with the person.¹

2. Same—Pleading—Amendment.

In such case, after sustaining the demurrer to the complaint, the court properly refused to permit an amendment thereto, so as to raise the question whether an action could be maintained for such damages for general administration, instead of for the benefit of the surviving family of the deceased, as such amendment would change the purpose of the action.¹

Appeal from common pleas circuit court of Barnwell county; T. B. Fra-Ser, Judge.

Action by Sallie V. All, administratrix of the estate of J. A. All, deceased, against the county of Barnwell, to recover for the death of said decedent, caused by a defect in a bridge of said county. Upon a demurrer to the complaint judgment was rendered for defendant, and plaintiff appealed.

Robert Aldrich and C. C. Simms, for appellant. J.J.Maher, ior respondent.

Simpson, C. J. The single question in this case is whether an action for damages will lie against a county in this state, under section 2183, Gen. St., by the administrator of a deceased party who lost his life through a defect ina bridge under the control of the county commissioners; negligence being alleged in the complaint. It is conceded that previous to the act of 1874, now section 1087, Gen. St., that no such action could be maintained against a county, —in fact, no action for damages, for negligence or otherwise, alleged to be the result of failure to repair highways, bridges, etc., —inasmuch as counties and other municipal corporations, being governmental agencies, were not liable at common law, in the absence of special statutory enactment. The act of 1874, (section 1087, Gen. St.,) however, gave a right of action "against a county for damages sustained by any one through a defect in the repair of a highway or bridge; the damages to be fixed by a jury: provided, if such defect existed before such injury occurred, such damages should not be recovered by the person injured if his load exceeded the ordinary weight." No doubt, had the deceased not been killed, he could have successfully maintained an action for his alleged injuries received here, under this section; but, having been killed, his right of action died with him at common law, under the general principle of the common law in all such cases, to-wit, that personal ex delicto actions die with the person. But, admitting this rule, it is yet contended that the action below was maintainable under section 2183, Gen. St., the act generally known as "Lord Campbell's Act." This act was passed in 1859, —years before the act of 1874, (section 1087,) supra. It is broad and general in its terms, and provides "that whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as to make the killing in law a felony." This act, as we have said above, was passed in this state years before the act of 1874, (section 1087, Gen. St.;) and while, in its broad and general terms, it gave a right of action to the representatives of deceased parties killed by the wrongful act, neglect, or default of another, for the benefit of the surviving wife, husband, or children, sufficiently comprehensive to embrace all cases where, if death had not ensued, they would have been actionable at common law by the party injured; and while in fact it amended the common law in so far as personal actions ex delicto dying with the person was involved, to the extent of allowing such actions to survive for the benefit of the surviving family, to the end of recovering damages proportioned to the injury sustained, yet, certainly, the general assembly could have had no express intention to embrace within...