Cochran v. City of Sumter, 18069

• Decision Date: 15 May 1963
• Docket Number: No. 18069,18069
• Citation: 131 S.E.2d 153,242 S.C. 382
• Court: South Carolina Supreme Court
• Parties: Johnny COCHRAN, Jr., Respondent, v. The CITY OF SUMTER, Wilson R. Strange, and One Automobile driven by the Defendant Strange as hereinbefore set forth, of whom the City of Sumter is, Appellant.

Page 153

131 S.E.2d 153

242 S.C. 382

Johnny COCHRAN, Jr., Respondent, v. The CITY OF SUMTER, Wilson R. Strange, and One Automobile

driven by the Defendant Strange as hereinbefore

set forth, of whom the City of Sumter

is, Appellant.

No. 18069.

Supreme Court of South Carolina.

May 15, 1963.

C. M. Edmunds, Sumter, for appellant.

Edward V. Atkinson, Sumter, for respondent.

TAYLOR, Chief Justice.

This appeal is from an Order of the Honorable Clarence E. Singletary overruling defendant's demurrer to plaintiff's complaint.

The Complaint alleges that plaintiff was injured when an automobile driven by defendant Strange, a Captain on the City of Sumter Police Force, struck a ladder on which plaintiff was standing, causing plaintiff to fall heavily to the ground, resulting in his injury.

Defendant's demurrer alleges the complaint does not state facts sufficient to constitute a cause of action against the City of Sumter for the reason that in said complaint plaintiff admits that he failed to file a verified claim or a summons and complaint within 90 days from the date of the accident as required by Statute.

Section 47-71, Code of Laws of South Carolina, 1962, provides in part:

'* * * Before any action shall be brought hereunder a claim duly certified shall be filed with such municipal corporation within three months after the date of such injury or damage or action commenced within such time on a verified complaint. If such verified claim be filed within the time herein fixed an action shall e commenced within one year from the date of filing thereof or such cause of action shall thereafter be barred.'

Paragraph 8 of the complaint admits that no verified claim for damages was filed within 90 days. The reason given for such failure being that the injuries received by plaintiff required medical treatment long in excess of the 90 day period, consequently no verified statement of damages could be filed until immediately prior to the bringing of this action.

A municipality of a political subdivision of the State for Governmental purposes and partakes of the State's immunity from suit in tort except as expressly permitted by statute. Hill et al. v. City of Greenville, 223 S.C. 392, 76 S.E.2d 294, 295.

In United States Casualty Co. v. State Highway Department of South Carolina, 155 S.C. 77, 151 S.E. 887, we find the following: "The consent of the state to be sued is entirely voluntarily on its part, and it may therefore prescribe the cases in which and the terms and conditions upon which it may be sued, and how the suit shall be conducted; and the state can be sued only in the cases, manner, place, and courts prescribed by it, and one who seeks to avail himself of such consent must pursue the remedy as it is provided by law, and must fully comply with the prescribed terms and conditions, and it is the duty of the courts to see that the prescribed methods of procedure are followed.' * * * 36 Cyc. 913.

"That a state cannot be sued in any of its courts without its express consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary.' * * * Lowery v. Thompson, 25 S.C. 416, 1 S.E. 141, 143."

Statutes permitting suit against a political subdivision of the State being in derogation of its sovereignty must be strictly construed. United States Casualty Co. v. State Highway Department of South Carolina, 155 S.C. 77, 141 S.E. 887; Reeves v. City of Easley, 167 S.C. 231, 166 S.E. 120; Taylor v. Sumter County, 168 S.C. 126, 167 S.E. 1. However, '* * * the rule of strict construction comes into play only when the language, after analysis and subjection to the ordinary rules of interpretation, presents ambiguity, where the language of the statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation * * *.' 50 Am.Jur., Section 389, page 408.

The lower Court in reaching its decision strongly relied upon Rushton v. South Carolina State Highway Department, 207 S.C. 112, 24 S.E.2d 484, in which filing of a verified claim within 180 days was required by the Statute. No claim was filed but a verified complaint was served within the time limit. Defendant's demurrer on the grounds that no claim was filed within the statutory period was sustained by the lower Court. The Supreme Court reversed that decision...