Brazell v. City of Camden

Decision Date31 July 1961
Docket NumberNo. 17813,17813
Citation121 S.E.2d 221,238 S.C. 580
PartiesRayford T. BRAZELL, Respondent, v. CITY OF CAMDEN, South Carolina, Appellant.
CourtSouth Carolina Supreme Court

Harold W. Funderburk, Camden, for appellant.

J. Reese Daniel, Columbia, Murchison, West & Marshall, Camden, for respondent.

TAYLOR, Chief Justice.

This appeal is from an Order overruling defendant's demurrer to the complaint, upon the ground that the complaint did not state a cause of action in that it is not alleged that plaintiff personally was injured in his person or property, but, on the contrary, a person other than plaintiff (his wife) allegedly sustained personal injuries by reason of defect in a street.

Two separate actions were instituted against the City of Camden, one by Bertha Brazell for damage for pain and suffering resulting from a fall allegedly caused by defect in a street in the City of Camden; and the other, the one with which we are concerned here, was by her husband for medical bills and loss of consortium by reason of his wife's fall and injury. The defendant, City of Camden, answer the complaint in the wife's action on the merits and demurred to the second or the husband's action. After hearing by the Presiding Judge, the demurrer was overruled. The defendant City then answered on the merits, reserving its right of appeal from the Order overruling the demurrer. Thereafter, upon trial, the husband was awarded damages; and the matter is now before this Court not upon the merits of the case but from the Order overruling the demurrer and will be determined by resolving the question of whether Section 47-70, Code of Laws of South Carolina, 1952, creates or grants to a husband or wife a cause of action for damages and loss of consortium as a result of injury from a defect in a street.

At common law the sovereign is immune to suit, McKenzie v. City of Florence, 234 S.C. 428, 108 S.E.2d 825; Brooks v. One Motor Bus, etc., 190 S.C. 379, 3 S.E.2d 42; and the immunity of the sovereign will never be considered as waived or surrendered or waived by inference or implication. To do so would be at variance with the common duty of Government and sound public policy to such an extent that the Courts have refused to hold that the sovereign immunity has been abrogated, abridged, or surrendered, except under plain and positive provisions of the statute, McKenzie v. City of Florence, supra; Brooks v. One Motor Bus, etc., supra; Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 59 S.E.2d 132.

The Section of the Code which plaintiff relies upon, Sec. 47-70, provides:

'Any person who shall receive bodily injury or damages in his person or property through a defect in any street, causeway, bridge or public way or by reason of a defect or mismanagement of anything under control of the corporation within the limits of any city or town may recover in an action against such city or town the amount of actual damages sustained by him by reason thereof if such...

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5 cases
  • McCall by Andrews v. Batson
    • United States
    • South Carolina Supreme Court
    • 16 Octubre 1984
    ...243 S.C. 600, 135 S.E.2d 233 (1964). 28. Cochran v. City of Sumter, 242 S.C. 382, 131 S.E.2d 153 (1963). 29. Brazell v. City of Camden, 238 S.C. 580, 121 S.E.2d 221 (1961). 30. Hollifield v. Keller, 238 S.C. 584, 121 S.E.2d 213 (1961). 31. Pinkston v. Morrall, 236 S.C. 601, 115 S.E.2d 286 (......
  • Belue v. City of Spartanburg
    • United States
    • South Carolina Supreme Court
    • 1 Junio 1981
    ...C. State Highway Dept., 244 S.C. 186, 135 S.E.2d 838 (1964); Jones v. Jones, 243 S.C. 600, 135 S.E.2d 233 (1964); Brazell v. City of Camden, 238 S.C. 580, 121 S.E.2d 221 (1961); Hinson v. A. ...
  • Truesdale v. South Carolina Highway Dept.
    • United States
    • South Carolina Supreme Court
    • 16 Abril 1975
    ...v. S.C. Tax Commission, 261 S.C. 302, 199 S.E.2d 763. This case cited with approval the following statement from Brazell v. City of Camden, 238 S.C. 580, 121 S.E.2d 221: '(T)he Courts have refused to hold that the sovereign immunity has been abrogated, abridged, or surrendered, except under......
  • Harrison v. South Carolina Tax Commission, 19703
    • United States
    • South Carolina Supreme Court
    • 11 Octubre 1973
    ...abridged, or surrendered, except under plain and positive provisions of the statute (citations omitted).' Brazell v. City of Camden, 238 S.C. 580, 582--583, 121 S.E.2d 221, 222 (1961). Since the Court of Common Pleas has jurisdiction in all civil cases under Article V, Section 15 of the Con......
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