Cooper v. South Carolina High-way Dep't

• Decision Date: 03 March 1937
• Docket Number: No. 14447.,14447.
• Citation: 190 S.E. 499
• Court: South Carolina Supreme Court
• Parties: COOPER . v. SOUTH CAROLINA HIGH-WAY DEPARTMENT.

190 S.E. 499

COOPER .

v.SOUTH CAROLINA HIGH-WAY DEPARTMENT.

No. 14447.

Supreme Court of South Carolina.

March 3, 1937

.

Appeal from Common Pleas Circuit Court of Lancaster County; G. Dewey Oxner, Judge.

Action by Idell Adams Cooper against the South Carolina Highway Department. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded, with direction.

John M. Daniel, Atty. Gen., J. Ivey Humphrey and M. J. Hough, Asst. Attys. Gen., and W. P. Robinson, of Lancaster, for appellant.

H. Hines, O. Roddey Bell, Gregory & Gregory, and Williams, Stewart & Williams, all of Lancaster, for respondent.

BONHAM, Justice.

The 18th day of October, 1934, four men left Lancaster, S. C, to go to. Mineral Springs, N. C. They were traveling in a Chevrolet automobile owned and driven by J. B. Marshall. The purpose of the trip was that Clyde Phillips should trade for a dog. Robert Adams went along to help Phillips select the dog. Phillips furnished five gallons of gas for the trip. Nothing was paid Marshall for the use of the car. Having accomplished their objective at Mineral Springs, they returned by a route which brought them on the paved road from Monroe, N. C, to its junction with the paved road from Charlotte, N. C, to Lancaster, which point they reached about 10 o'clock at night. Here an accident occurred in which Marshall, the driver of the car, and Robert Adams, riding on the back seat, were killed, and the other two occupants of the car were more or less seriously injured.

Action was brought by Idell Adams, the widow of Robert Adams, under the provisions of the statute which we speak of as "Lord Campbell's Act, " for the benefit of herself and her infant son. Before the case came to trial, the child had died and Idell Adams had intermarried with one Cooper. At the call of the case for trial, at the March, 1936, term of court, the complaint was amended to meet the changes caused by the death of the lad and the marriage of Mrs. Adams.

The case is brought under the consent that the State Highway Department may be sued, given by the act of the Legislature embodied in the Code of Laws 1932, as section 5887, which, for the purpoie of ready reference, we produce here:

"State Highway. Department May Be Sued.--(1) Conditions and Amount of Recovery.-- 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: Provided, That the State Highway Department is hereby authorized and empowered to settle or compromise any claim in an amount not exceeding three hundred ($300.00) dollars.

"(2) Contributory Negligence--Complaint.--Any person, firm or corporation bringing a suit against the State Highway Department must allege and prove that he, she or it did not bring about the injury by his, her or its own negligence, nor negligently contribute thereto: Provided, That this section shall not apply to injuries on roads under construction when the highway department is protected by indemnity bond.

"(3) Claims to be Filed--Limitation of Action.-- A claim giving the date, place where the injury or damage occurred, and the amount claimed must be made out, sworn to, and filed with the State Highway Department within one hundred and eighty days after the alleged injury or damage. Suit, if any, must be commenced, by the service of a summons and complaint, within twelve months from the date of the injury or damage: Provided, That the time limits imposed by this section for giving notice and commencing suit shall not apply in cases of injuries or damages already sustained or claims already filed with the State Highway Department which may be compromised or settled under the provisions of subsection (1): Provided, further, That the payment of any claim or judgmentunder the provisions of this section shall be made from the maintenance funds of the State Highway Department.

"(4) In Case of Death.--Wherever the death of a person shall be caused 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 said highways, under such circumstances and conditions as would have entitled the party to recover damages under the terms of this section, if death had not ensued, then in every such case the right of action for such injury and death shall survive to and may be enforced by the personal representative of such person in the same manner as is now provided by section 412 for actions by administrators and executors, where death results from personal injuries; and said provisions shall be applicable to all such actions.

"(5) Suits Pending.--The provisions of this amendment (1931) shall be applicable also to all actions now pending in the courts of this State which shall have already been commenced under the provisions of said Act (No. 1055) of the 1928 General Assembly."

The complaint, omitting formal allegations, sets forth that the Highway Department constructed state highway No. 25 and federal highway No. 521, and negligently caused a dangerous pit about 10 feet deep to be formed at or near the junction of the two highways, and carelessly permitted it to be and remain open and insecurely guarded; that on or about October 18; 1934, plaintiff's intestate was riding as a passenger in the rear seat of an automobile owned and operated by J. B. Marshall, along state highway No. 25 to federal highway No. 521; that the car was being driven at a lawful rate of speed, at about 10 o'clock at night; that suddenly, and without any warning to plaintiff's intestate, the automobile was on the edge of the pit above mentioned; that the driver of the automobile applied brakes and did all he could to keep from running into the pit, but in spite of his efforts the car did plunge into the pit, with "a terrific impact and crash, thereby causing the immediate death of plaintiff's intestate as the proximate cause thereof"; that the death of plaintiff's intestate was caused solely by the negligence of defendant in the following particulars (a) In forming or causing to be formed a deep hole or pit at or near the junction of state highway No. 25 and federal highway No. 521.

(b) In permitting said hole or pit to remain at the junction of the two highways.

(c) In failing to erect a sufficient guard rail around the eastern side of said hole or pit.

(e) In failing to erect proper signs or other devices around said pit to warn motorists traveling along highway No. 25 toward highway No. 521 of the presence and danger of said hole or pit.

(f) In failing to have proper and sufficient signs around said pit at the time of the injury and death of plaintiff's intestate to warn motorists on said highway of the existence, location and extremely dangerous character of the said hole or pit.

Specifications (g) and (h) are practically the same as (e) and (f).

(i) In failing to fill in said hole or pit.

The complaint further alleges that prior to the time of this accident other automobiles traveling on this highway had run into this pit, causing the death or injury of passengers, which facts were known to the defendant; that in due time plaintiff filed claim with the defendant; that plaintiff's intestate did not bring about his own injury and death, and did not by his own acts and negligence contribute thereto.

The answer sets up a general denial, except as to the things admitted or qualified; admits paragraphs 1 and 2 of the complaint, except the allegation in paragraph 2 that defendant is liable and subject to a suit for the acts complained of. Admits so much only of paragraph 3 as alleges that defendant constructed the highways therein named. Admits only so much of paragraph 7 as alleges that the claim was properly filed.

For further defense: On information and belief that at the time and place mentioned in the complaint the deceased, Robert Adams, was in an automobile driven in in the nighttime by J. B. Marshall at a high rate of speed, in such a reckless, careless, and unlawful manner, and without regard to the time and place, that said automobile was caused to leave said highway

and to run ----feet and with great

force into a concrete wall and other objects, and thus causing, and being the sole cause of, the injuries which it is alleged were received by plaintiff's intestate. De-fendant denies that it contributed in anyway thereto; that the said highway-was in good repair, with sufficient signs, warning and guard rails, and safe in every way for those using it with ordinary care.

That plaintiff's intestate was in an automobile driven by J. B. Marshall, both being engaged in a common or joint enterprise; that the automobile was being operated in a careless, negligent, and unlawful manner; that such injuries as were received by plaintiff's intestate were due to their joint acts as set out above.

On the trial, motions for nonsuit, directed verdict, and new trial were duly made and refused.

The jury found for plaintiff. The appeal rests upon seven exceptions which charge error to the trial judge for refusing to grant the motions for nonsuit, directed verdict, and new trial.

Error is imputed to the trial judge for charging the jury that plaintiff might recover for mental anguish;...