Hanigan v. Minnehaha County

• Decision Date: 13 December 1924
• Docket Number: 5570.
• Citation: 201 N.W. 522,47 S.D. 606
• Parties: HANIGAN v. MINNEHAHA COUNTY et al.
• Court: South Dakota Supreme Court

201 N.W. 522

47 S.D. 606

HANIGAN v. MINNEHAHA COUNTY et al.

No. 5570.

Supreme Court of South Dakota

December 13, 1924

Appeal from Circuit Court, Minnehaha County; Asa Forrest, Judge.

Action by Alvah Hanigan against Minnehaha County and Edison Township. From an order sustaining demurrers to complaint plaintiff appeals. Affirmed.

Kirby Kirby & Kirby, of Sioux Falls, for appellant.

Hugh S Gamble, State's Atty., and Michael G. Luddy, both of Sioux Falls, for respondent, Minnehaha County.

Waggoner & Stordahl, of Sioux Falls, for respondent, Edison Township.

GATES J.

This is an action brought against Minnehaha county and Edison township, an organized township of said county, for damages for personal injuries sustained by plaintiff while driving upon a highway in said township on August 2, 1923. The defendants each demurred separately to the complaint upon the ground, among others, that it did not state facts sufficient to constitute a cause of action. The trial court sustained each demurrer and therefrom the plaintiff appeals.

Appellant predicates his right to bring this action on section 8589 and 8590, Rev. Code 1919, which read as follows:

"Sec. 8589. Guards Erected-Repairs. It shall be the duty of the governing body of every city, incorporated town and organized civil township, and of the board of county commissioners in territory not included in any such city town or township, to keep the public highways, culverts and bridges in such condition as to render them safe, passable and free from danger of accident or injury to persons or property while in the lawful use thereof; and in case any highway, culvert or bridge shall become, in whole or in part, destroyed or out of repair by reason of floods, fires or other cause to such an extent as to endanger the safety of public travel, it shall be the duty of such governing body or board, upon receiving notice thereof, to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defect or across such highway of sufficient height, width and strength to warn and guard the public from accident or injury, and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert or bridge as provided in this article.

Sec. 8590. Violation-Penalty-Damages. Any officer who shall violate the provisions of the preceding section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than ten nor more than fifty dollars or by imprisonment in the county jail not less than five nor more than ten days, or by both such fine and imprisonment; and any person who shall sustain injury to person or property by reason of any violation of such section shall have a cause of action against the city, town, township or county, as the case may be."

The complaint charges that the defendants, respondents here, were negligent in failing to keep the highway, to wit, a bridge, at a place specified, in a condition fit for travel, and in allowing it to be and remain in a dangerous condition, the particulars of which are fully set forth. It is also alleged that the highway in question is part of the present county highway system.

If said sections 8589 and 8590 were now the law on the subject, or were the only law on the subject, it must be conceded that a cause of action would have been alleged against Edison township because that township is an organized civil township. By the same token it must be conceded that no cause of action would have been alleged against Minnehaha county under said sections because section 8589 does not purport to impose a duty upon the county in respect to highways in organized civil townships, and it is only for the violation of section 8589 that section 8590 purports to create a remedy in the form of a civil action.

However in 1919 the state entered upon a new era of highway construction. Chapter 333, Laws 1919, is a comprehensive statute upon that subject. It provides generally for three systems of highways: (1) The state trunk highway system, aided by federal funds, constructed by the state highway commission; (2) the county highway system constructed by the counties under the supervision of the state highway commission; and (3) secondary roads, constructed by townships. A civil township no longer has any power or duty in respect to the construction or maintenance of any part of the county highway system within its borders, and section 29 of said chapter 333 purports to place upon the county board the duty of constructing and maintaining all bridges in the county except those on the state trunk highway system. It is therefore perfectly clear that said section 8590 no longer has any application to townships in respect to an injury arising from defective maintenance of the county highway system. The demurrer of Edison township to the complaint was therefore rightly sustained.

Now, as to the liability of Minnehaha county: Prior to the adoption of chapter 210, Laws 1915, which chapter was the original source of said sections 8589 and 8590, it was the settled law of this jurisdiction, following the rule of the common law that a county was not liable for damages caused by the neglect of its officers to keep in repair a bridge upon a public...