Fann v. State Highway Dept.

• Decision Date: 24 February 1930
• Docket Number: 12843.
• Citation: 152 S.E. 429,155 S.C. 219
• Parties: FANN v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

152 S.E. 429

155 S.C. 219

FANN v. STATE HIGHWAY DEPARTMENT.

No. 12843.

Supreme Court of South Carolina

February 24, 1930

Appeal from Common Pleas Circuit Court of Union County; D. S. Murph Special Judge.

Action by Rylon Fann, by his guardian ad litem, W. N. Fann, against the State Highway Department of South Carolina. Judgment for plaintiff, and defendant appeals.

Reversed with direction.

Jno. M Daniel, Atty. Gen., and Cordie Page and J. Ivey Humphrey Asst. Attys. Gen., for appellant.

Nicholls, Wyche & Byrnes and Ryan S. Moore, all of Spartanburg, and Barron & Barron, of Union, for respondent.

BLEASE J.

This action for personal injuries, alleged to have been sustained by Rylon Fann, an infant, caused by a defective highway, was commenced on November 7th, 1927, in the court of common pleas for Union county. The case was tried before his Honor, Special Judge D. S. Murph, and a jury, on September 14th, 1928, and resulted in a verdict for the plaintiff; and from the result, the State Highway Department has appealed.

The suit, one against a department of the state government, was, of course, actually a suit against the state. The action could not be maintained, therefore , except by the express consent of the state; and that consent had to be given by legislative authority.

It is evident that the plaintiff sought to bring and maintain the action under the authority of Act No. 189 of the General Assembly of the year 1925, entitled, "An Act to Amend Section 2948 of the Civil Code of Laws, Volume 3, Relating to Damages From Defective Highways, so as to Further Provide for the Payment of Damage or Injury Sustained Upon the Highways of the State." 34 St. at Large, p. 287. That act was approved April 14, 1925.

Between the date of the commencement of the action and the day of the trial, the Act of 1925, supra, was superseded and repealed by Act No. 1055 of the year 1928, approved March 10th of that year, entitled, "An Act to Permit the State Highway Department to be Sued and Naming the Conditions Under Which Suit May be Instituted, and Providing for Compromise or Settlement in Certain Cases." 35 St. at Large, p. 2055.

The Act of 1928, permitting the bringing of suits against the State Highway Department for injuries to persons and damage to property occurring from defective highways, provided, as one of the requisites for the instituting and maintaining of such suits, "That 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 ninety days after the alleged injury or damage."

That act also provided that as to injuries or damages sustained before the passage of that act "the time limits imposed *** for giving notice and commencing suit should not apply."

We have just recently held that while the time limit for...