Arms v. Minnehaha County

• Decision Date: 01 February 1943
• Docket Number: 8543.
• Parties: ARMS v. MINNEHAHA COUNTY.
• Court: South Dakota Supreme Court

7 N.W.2d 722

69 S.D. 164

ARMS v. MINNEHAHA COUNTY.

No. 8543.

Supreme Court of South Dakota

February 1, 1943

Louis H. Smith, of Sioux Falls, for appellant.

Verne H. Jennings, N. A. Boe, and John R. McDowell, all of Sioux Falls, for respondent.

ROBERTS Presiding Judge.

The plaintiff Viola Arms commenced this action against Minnehaha County and James Anderson. The case was tried before a jury. The jury returned a verdict for plaintiff and defendant county moved for judgment notwithstanding the verdict upon the ground that the defendants were engaged in the exercise of a governmental function and that the defendant county was not liable for the negligence of its employee. This motion was granted by the trial court and plaintiff appeals from the judgment entered thereon.

Plaintiff sustained injuries as the result of a collision between an automobile driven by her husband and a snowplow owned by Minnehaha County and driven by defendant Anderson an employee of the county. It appears without dispute that defendant Anderson at the time of the accident was not engaged in work upon a county highway, but was returning from work over U. S. Highway 77 to the county garage in Sioux Falls. The statute under which the county is sought to be held liable is SDC 44.0333. This section was a part of the Uniform Motor Vehicle Act, § 33, ch. 251, Laws 1929. That section reads as follows: "The provisions of this chapter, applicable to the drivers of vehicles upon the highways, shall apply to the drivers of all vehicles owned or operated by this state or any county, city, town district or any other political subdivision of the state subject to such specific exceptions as are set forth in this chapter. The provisions of this chapter shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work."

It is well settled that no action lies against a county, in the absence of statute to the contrary, to recover damages for the negligence of its officers, agents or employees. Bailey v Lawrence County, 5 S.D. 393, 59 N.W. 219, 49 Am.St.Rep. 881; Hanigan v. Minnehaha County et al., 47 S.D. 606, 201 N.W 522; Brown v. Roberts County, 49 S.D. 173, 206 N.W. 479; Cain v. Meade County, 54 S.D. 540, 223 N.W. 734; Robinson v Minnehaha County, 65 S.D. 628, 277 N.W. 324; Vesely v. Charles Mix County et al., 66 S.D. 570, 287 N.W. 51. The county contends that this common law immunity has not been abrogated by the provisions of the statute on which plaintiff relies.

The section above quoted makes the provisions of chapter 44.03 regulating the operation of vehicles on the highways applicable "to the drivers of all vehicles owned or operated" by any county "subject to such specific exceptions as are set forth in this chapter." It contains the limitation however, that the provisions of the chapter shall be inapplicable where the persons or vehicles are "actually engaged in work upon the surface of a highway", but leaves the provisions of this chapter applicable "to such persons and vehicles when traveling to or from such work." When persons are engaged in work upon a highway, it would not be reasonable to expect compliance with the provision requiring a driver of a vehicle, for instance, to drive on the right half of the highway (SDC 44.0309) and other similar regulations. See Hockenhull et al. v. Strom Const. Co., 212 Minn. 71, 2 N.W.2d 430. The legislature sought to define the applicability of the highway regulations contained in chapter 44.03 to drivers of vehicles owned or operated by the state and its political s...