Chick v. Newberry County
| Decision Date | 26 October 1887 |
| Parties | CHICK v. NEWBERRY CO. and another. HENDERSON v. SAME. |
| Court | South Carolina Supreme Court |
Appeal from common pleas, circuit court of Newberry county; FRASER Judge.
Y. J Pope and Johnstone & Cromer, for appellant.
Goggans & Herbert and Munro, for respondents.
These cases were heard together on the circuit, and will be so considered here; but, to prevent confusion, the observations made will be addressed to the first case stated,--that of Mrs. Chick, --intending that they should apply equally to the other case. In 1874 the legislature passed an act "that the county commissioners of Newberry county be, and they are hereby, authorized and required to build a bridge across Tyger river at or near by Gordon's ferry, in said county that the said bridge shall be free, and no toll or charges whatever be collected for crossing said bridge," etc and a few days after passed another act providing "that if any bridge over the waters of this state, which constitute a boundary line between counties, shall be necessary to be erected or repaired, it shall be the duty of the commissioners of said counties to cause the same to be erected or repaired," etc. 16 St. 787. Tyger river, a fresh-water stream, not navigable at the point known as "Gordon's Ferry," is the boundary line between the counties of Newberry and Union.
The pleadings do not inform us whether the free bridge directed by the above act was ever built or not; but the plaintiff alleges that, in 1886, "the counties of Newberry and Union jointly owned and operated a flat-boat at Gordon's ferry, on Tyger river, and transported wagons and teams for the public across said river; that said flat-boat was defective, and, while transporting across said river a wagon belonging to the plaintiff laden with wheat, sank, whereby the wagon and wheat were lost, and a mule drowned, to the damage of the plaintiff three hundred dollars," etc. The cause came on for trial, and the defendants-the counties of Newberry and Union-interposed an oral demurrer, upon two grounds: " First, that the court of common pleas has no original jurisdiction to try such actions, but only appellate jurisdiction; and, second, that the complaint does not state facts sufficient to constitute a cause of action."
His honor, Judge FRASER, sustained the demurrer on the second ground, that the complaint did not state facts sufficient to constitute a cause of action against the counties jointly or severally; and the plaintiff appeals to this court upon the following grounds: etc.
As to the question of jurisdiction, we think this was not a simple "county claim," within the meaning of the decision in Jennings v. County of Abbeville, 24 S.C. 548, which should have been preferred originally before the county commissioners, and could only get into the court of common pleas by appeal. The action is not upon a breach of contract made by the county commissioners, but for damages on account of alleged negligence on their part,-an action ex delicto; and it would be against all principle, and the analogies of the law, for them to be judges in their own case. The plaintiff clearly has no redress unless it can be afforded by the court of common pleas. Can that court give it? It may be that if the persons known as the county commissioners had individually established a private ferry' at the place indicated, and had undertaken to put across the public generally and their property for compensation, they might have been made liable for damages occasioned by their negligence. See Littlejohn v. Jones, 2 McMul. 368. But here the question reaches further than that, and is whether the county commissioners, in establishing the ferry and acting negligently, so represented the county as to make it (the corporation) responsible in damages for their negligence. Neither municipal corporations, nor quasi corporations, nor such other public bodies as are charged with like duties, are liable in a civil action for damages, unless imposed by statute. Young v. City Council of Charleston, 20 S.C. 116. By the act of 1874, re-enacted in the General Statutes as section 1087, it is provided that "any person who shall receive bodily injury or damage in his person or property through a defect in the repair of a highway, causeway, or bridge, may recover, in an action against the county, the amount of damage fixed by the finding of a jury," etc. Does this act authorize the action? Prior to its adoption, the disability in such cases (against the county) was general, and still remains as to all except such as are taken out by the act, which certainly does not, in express terms, cover this case. Neither the word "ferry" nor "flat-boat" occurs in the act.
It is urged, however, that the act affording a remedy in certain cases, not allowed before, is remedial in its character, and should therefore be construed liberally; that, as it provides relief for an injury arising from a defective "bridge," a "flat-boat" substituted for a bridge comes within the spirit and object of the act, and it should be so declared. It is true there are some cases in which the court may give a liberal construction to an act of the legislature, but we disclaim the right to supplement by way...
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