Bynum v. State Highway Dept.
| Decision Date | 22 April 1930 |
| Docket Number | 12902. |
| Parties | BYNUM v. STATE HIGHWAY DEPARTMENT. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; H. F Rice, Judge.
Action by Oswald Bynum, by his guardian ad litem Hattie Bynum, against the State Highway Department of South Carolina. Judgment for plaintiff overruling a demurrer to the complaint, and defendant appeals.
Reversed and remanded.
John M Daniel, Atty. Gen., and Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., for appellant.
A. R. McGowan, of Charleston, for respondent.
At its 1925 session, the Legislature passed an act (34 St. at Large, page 287) section 2948 of vol. 3, Code 1922, by adding at the end thereof the following proviso:
" Provided, further, That any injury or damage to person or property through a defect or negligent repair of any road, causeway, ferry or bridge, or by reason of collision with any truck or other instrumentality under the control and supervision of the State Highway Department of South Carolina, the county shall not be liable and the damages hereinabove provided for shall be recovered in a suit or action brought against the State Highway Department of South Carolina in its official name as aforesaid, to be brought and tried in the county in which the said injury or damage occurred, subject to a change of venue as in other civil actions, and any judgment recovered shall be paid by the State Highway Department of South Carolina out of its general funds."
In 1928, the General Assembly passed another act (35 St. at Large, p. 2055), approved March 10 of that year, the title of which reads as follows: "An Act to Permit the State Highway Department to be Sued and Naming the Conditions Under Which Suit May be Instituted, and Providing for Compromise or Settlement in Certain Cases." Section 1 is, in part, as follows:
"Any person, firm or corporation who may suffer injury to his or her person or damage to his, her or its property by reason of a defect in any State Highway, or by reason of the negligent repair of any State Highway, or by reason of the negligent operation of any vehicle or motor vehicle in charge of the State Highway Department while said vehicle or motor vehicle is actually engaged in the construction or repair of any of the said highways, may bring suit against the State Highway Department for the actual amount of said injury or damage not to exceed in case of property damaged the sum of fifteen hundred dollars, and in case of personal injury or death, not to exceed the sum of four thousand ($4,000.00) dollars. ***"
The act also provides, as a prerequisite to the bringing of a suit, for the filing of a claim with the state highway department within the time named in the act, etc., and repeals all inconsistent legislation.
The case at bar commenced about February 26, 1929, was brought under the 1925 act, to recover damages for personal injuries. The complaint alleges that on or about January 3, 1928, while the plaintiff, a minor of the age of fifteen years, was walking on and along the state public highway which connects the city of Charleston with the town of Summerville, he was run into, upon, and against by a Ford coupé owned by the state highway department and driven by one C. W. Sanders, an agent and servant of the defendant; that plaintiff was thrown violently into a ditch on the side of the road, had his left leg broken, and was otherwise painfully and seriously injured; and that his injuries were due to the carelessness and negligence of the defendant in causing and permitting its automobile to be driven on the public highways by a person who was physically and mentally unable to properly operate and control same, and in failing to exercise ordinary care for the protection and safety of persons using such highways.
The defendant demurred to the complaint upon the following grounds:
The matter was heard by his honor, Judge Rice, who did not pass upon the second ground, but overruled and dismissed the demurrer, holding that so much of the act of 1925 as gave the right of action against the state highway department for damages incurred " by reason of collision with any truck or other instrumentality under the control and supervision of the State Highway Department of South Carolina" was not repealed by the act of 1928 giving a right of action against the department for damages sustained by reason of the negligent operation of a " motor vehicle in charge of the State Highway Depart ment while said vehicle or motor vehicle is actually engaged in the construction or repair of any of the said highways. " (Italics added.) From this order the defendant appeals.
This court has recently had occasion in the case of U.S Casualty Co. v. State Highway Department, 151 S.E. 887, 890...
To continue reading
Request your trial
-
Rushton v. South Carolina State Highway Dept.
... ... 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 ... ...
-
McCoy v. State Highway Dept. of South Carolina
... ... argues that by the terms of this act plaintiff's right to ... maintain his action is destroyed, and relies in support of ... its argument on the utterances of this court in the cases of ... United States Casualty Co. v. State Highway ... Department, 155 S.C. 77, 151 S.E. 887, and Bynum v ... State Highway Dept., 156 S.C. 232, 153 S.E. 165, which ... in effect hold that the right to sue the state being purely ... statutory may be withdrawn or modified by the state whenever ... it sees fit, even though pending suits may be thereby ... defeated. With this declaration of the ... ...
-
Ancrum v. State Highway Department
... ... Highway ... Department, 155 S.C. 77, 151 S.E. 887; Fann v ... Highway Department, 155 S.C. 219, 152 S.E. 429; ... Bynum v. State Highway Department, 156 S.C. 232, 153 ... S.E. 165. Further, if no allegation of the filing of a claim ... is made, no cause of action is ... ...
-
Owens v. State Highway Dept.
...had been so filed. This not having been done, the plaintiff was without a cause of action, as stated in his complaint." In Bynum v. State Highway Department, supra, we find "The demurrer should have been sustained also upon the ground that the complaint did not allege the filing of a claim,......