Dolan v. City of Camden

• Decision Date: 16 April 1958
• Docket Number: No. 17413,17413
• Citation: 233 S.C. 1,103 S.E.2d 328
• Court: South Carolina Supreme Court
• Parties: Emma H. DOLAN, Appellant, v. The CITY OF CAMDEN and Kershaw County, Respondent, Of Whom City of Camden is also Appellant.

Page 328

103 S.E.2d 328

233 S.C. 1

Emma H. DOLAN, Appellant, v. The CITY OF CAMDEN and Kershaw County, Respondent Of Whom City of Camden is also Appellant.

No. 17413.

Supreme Court of South Carolina.

April 16, 1958.

J. Clator Arrants, Harold W. Funderburk, Camden, for appellant.

John K. deLoach, Jr., Camden, for respondent.

TAYLOR, Justice.

This appeal arises out of an action brought in the Court of Common Pleas for Kershaw County by appellant, Emma H. Dolan, for damages allegedly suffered by her personally by reason of a defect in a street in the City of Camden.

The street in question was at the time being prepared for paving by the personnel and equipment of respondent, Kershaw County, under a contract between said County and the South Carolina Highway Department. Demurrers were filed by the Highway Department and the City of Camden, and Kershaw County moved that it be dismissed as party-defendant. The matter was heard by the Honorable J. B. Pruitt, presiding Judge, who sustained the demurrer of the South Carolina Highway Department, granted the motion of Kershaw County that it be dismissed as party-defendant, and overruled the demurrer of the City of Camden. No appeal was taken from the Order sustaining the demurrer of the South Carolina Highway Department; and this appeal, on behalf of the City of Camden, is from the Order overruling its demurrer and the Order dismissing the defendant Kershaw County as party-defendant with plaintiff joining in the appeal with respect to the Order dismissing Kershaw County.

The State and its political subdivisions waived immunity from suit enjoyed by the sovereign and permits recovery of damages arising out of defective highways under their respective control: The State, Section 33-229, Code of Laws of South Carolina, 1952; the County, Section 33-921, Code of Laws of South Carolina, 1952; and the City, Section 47-70, Code of Laws of South Carolina, 1952. However, Section 33-174, Code of Laws of South Carolina, 1952, provides:

'The performance of work within a municipality by the Department shall nto result in the assumption by the Department of any liability whatever on account of damages to property, injuries to persons, or death growing out of or in any way connected with such work. None of the provisions of article 6 of this chapter relating to damage claims shall apply to sections of State highways within the corporate limits of municipalities except § 33-234.'

Section 33-234, Code of Laws of South Carolina, 1952, provides:

'Any person suffering damage to property or injuries or death by reason of the construction, reconstruction or maintenance of any highway or section of highway, as provided in §§ 33-112 and 33-171, within the limits of any municipality of the State shall have such right of action against the municipality in which such damages, injuries or death may be suffered as is provided by law applicable to municipalities and the remedy thus afforded shall be exclusive. * * *'

From the foregoing it is clear that the Legislature specifically preserved the State's immunity from suits arising out of construction, reconstruction or maintenance by the State Highway Department of any State Highway within a municipality and at the same time provided that any person suffering damage by reason of such construction shall have a right of action against the municipality. All work of construction, reconstruction, and maintenance by the Highway Department upon any section of a State Highway within the limits of a municipality is performed with the consent and approval of the proper municipal authorities and in no way relieves the municipality of the fundamental responsibility to keep such streets or highways within their limits safe and free from obstruction, Bell v. South...