Chewning v. Clarendon County

• Decision Date: 26 January 1933
• Docket Number: 13563.
• Citation: 167 S.E. 555,168 S.C. 351
• Parties: CHEWNING v. CLARENDON COUNTY.
• Court: South Carolina Supreme Court

167 S.E. 555

168 S.C. 351

CHEWNING v. CLARENDON COUNTY.

No. 13563.

Supreme Court of South Carolina

January 26, 1933

Appeal from Common Pleas Circuit Court of Clarendon County; M. L Bonham, Judge.

Action by Marian Louise Chewning, as administratrix of the estate of J. H. Chewning, deceased, against Clarendon County. From an order sustaining a demurrer to the complaint and a final judgment entered thereon dismissing the action plaintiff appeals.

Affirmed.

The order of his honor, Judge Bonham, directed to be reported, is as follows:

This is an action against the county for damages for the pain and suffering of plaintiff's intestate, who was fatally injured on a highway bridge of the defendant.

On proper notice, I heard arguments upon a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, in that:

First. That it appears upon the face of the complaint that it is attempted to set up a cause of action for damages for pain and suffering accruing to the intestate and surviving to his personal representatives by the terms of the "Survival Statute" (section 375, Code of Civil Procedure 1922) whereas there is no provision in law for such an action against the defendant, a county of this state.

Second. That, if such a cause of action as is referred to in the first ground above, and attempted to be set up in the complaint, exists, it is in favor of plaintiff as administratrix of the personal estate of the deceased and not in her representative capacity for the benefit of herself and children, as is alleged in the complaint, and in whose behalf she purports to bring this action.

Upon the first ground I think that the demurrer should be sustained, and I so hold. No action lies against a county in tort unless expressly permitted by statute. Section 2950 of the Civil Code of 1922 fixes the rights of the parties in the case of the resulting death of one injured by defects in a county highway or bridge and gives a right of action against the county, under Lord Campbell's Act. This remedy the plaintiff appears to have pursued to judgment the statute provides no other; and an examination of its origin shows that it was not intended by the Legislature to create the right of action here attempted.

The statement to the contrary in the opinion in the case of McLendon v. Columbia, 101 S.C. 48, 85 S.E. 234, 5 A. L. R. 990, appears to be obiter dictum. However, it was decided under a statute very different from the present section 2950, now the only statutory law upon the subject, as is pointed out in Randal v. State Highway Department, 150 S.C. 302, 148 S.E. 57, and is therefore not controlling.

With respect to the second ground of the demurrer, I think that the plaintiff has properly stated a survival action, if such were permitted by statute against a county, and I overrule this ground.

It is therefore ordered and adjudged that the complaint in this action be, and it hereby is, dismissed, with costs to the defendant.

Epps & Levy, of Sumter, and J. W. Wideman, of Washington, D. C., for appellant.

Dinkins & Stukes, of Manning, for respondent.

CARTER J.

This action,...