Jackson County, SD v. Dufty

• Decision Date: 22 March 1945
• Docket Number: No. 12952.,12952.
• Citation: 147 F.2d 227
• Parties: JACKSON COUNTY, S. D., v. DUFTY.
• Court: U.S. Court of Appeals — Eighth Circuit

147 F.2d 227 (1945)

JACKSON COUNTY, S. D., v. DUFTY.

No. 12952.

Circuit Court of Appeals, Eighth Circuit.

February 19, 1945.

Rehearing Denied March 22, 1945.

Harold E. Covey, of Kadoka, S. D., and Charles H. Whiting, of Rapid City, S. D., for appellant.

H. F. Fellows, of Rapid City, S. D. (H. P. Gilchrist, of Kadoka, S. D., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellee, Hattie Dufty, as special administratrix of the estate of her deceased husband, Avery J. Dufty, against Jackson County, South Dakota, to recover damages for the death of her husband by wrongful act. The parties will be referred to as they were designated in the trial court.

It is alleged in the complaint that on the morning of September 25, 1943, plaintiff's intestate, Avery J. Dufty, was driving his automobile across a bridge on a road in Jackson County, South Dakota, south of the town of Cottonwood, the bridge being a part of the county highway system of said county; that the bridge was destroyed and out of repair to such an extent as to endanger public travel, it being old and deteriorated and the planks forming the floor rotted, rough and uneven, and about fifty feet of the guard rail at the north end of the west side of the bridge having been knocked down and destroyed, such a condition having continued for a long time prior to the date alleged; that when decedent's automobile came upon the bridge the tires broke through the floor, entered one of the holes in the floor of the bridge, causing him to lose control of the car and precipitating it from the bridge to the bottom of the creek bed below, causing his death. It was alleged that defendant had had notice of the unsafe condition of the bridge for a long time prior to the happening of the accident.

The defendant denied generally the allegations of the complaint except as to jurisdictional allegations, denied that it was under the duty of keeping the bridge in repair, denied that any negligence on its part relative to the maintenance or repair of said bridge was the proximate cause of plaintiff's intestate's death, and alleged affirmatively that said intestate had been guilty of contributory negligence.

On stipulation of the parties the action was tried to the court without a jury, resulting in findings of fact and conclusions of law in favor of plaintiff, fixing her damages at $10,000. From the judgment entered on these findings and conclusions defendant prosecutes this appeal, seeking reversal on the following grounds: (1) The bridge on which the accident occurred was not a bridge which it was the duty of the County Commissioners of Jackson County to maintain and keep in repair; (2) the failure, if any, of the governing body of Jackson County to maintain and keep in repair the bridge on which the accident occurred was not the proximate cause of the accident which resulted in the death of appellee's decedent; (3) appellee's decedent was guilty of contributory negligence.

It is admitted that in South Dakota a county can not be sued for damages for personal injuries except as expressly authorized by statute. Plaintiff bottoms her right of action and the liability of the defendant county upon certain statutory provisions. Section 28.0913, South Dakota Code 1939, provides as follows:

"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 the governing body or board under statutory duty to maintain such highway, culvert, or bridge 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 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 in like manner.

"Any person who shall sustain injury to person or property by reason of any violation of this section shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained."

Section 28.0312, South Dakota Code 1939, provides as follows: "It shall be the duty of the board of county commissioners to maintain properly and adequately the county highway system within the county by contract or day labor on all or different portions of the same as the board of county commissioners may deem most expedient, and to maintain any secondary highways according to any agreement made by it in consideration of federal aid received for construction and improvement of such highways."

Section 28.1402, South Dakota Code 1939, provides as follows: "The duty to construct and maintain all bridges and culverts throughout the county, except upon the State Trunk Highway System, is hereby imposed upon the board of county commissioners, subject to sections relating to culverts on secondary highways in townships."

Section 28.1414, South Dakota Code 1939, provides that it shall be the duty of the county highway superintendent to make inspection of the existing bridges in the county "for any conditions affecting the life and safety of the bridge such as faulty design, neglect of maintenance" etc. He is required to make report to the board of county commissioners as to his inspection. Manifestly, if the bridge on which the accident occurred was not a part of the county highway system of Jackson County, it could not be held liable in this action. This is a mixed question of fact and law. The court found as a fact that the bridge was a part of the county highway system "which it was the statutory duty of such county to maintain."

By Chapter 107 of the South Dakota Session Laws of 1939, which became effective July 1, 1939, the state highway system as theretofore designated was perpetuated; hence, if the bridge in question was a part of the county highway system, and not a part of the state highway system, on that date, it continued to be such at the time of the accident, September 25, 1943, unless a change were made in the manner provided by statute. It is therefore important to determine the status of this bridge prior to July 1, 1939.

It is the claim of plaintiff that the bridge became a part of the county highway system either on May 2, 1939, through action of the Board of County Commissioners of Jackson County, or on June 27, 1939, through action of the State Highway Commission consummating the action taken by the Board of County Commissioners. The resolution adopted by the Board of County Commissioners of Jackson County on May 2, 1939, recites that the attached map and reference descriptions be and are proposed as the county highway system of Jackson County, South Dakota. The resolution provides for the giving of public notice of a hearing to be held upon the proposed highway system, and sets out a description of the highways to be included in the county highway system. The description includes the highway on which the bridge in question in this action is located. On June 6, 1939, the Board adopted the following resolution:

"Whereas, on May 2nd, 1939, this Board by resolution proposed a Highway System for Jackson County, South Dakota, and designated this day for a hearing on the said proposed County Highway System, and

"Whereas, it is deemed to the best interest of Jackson County, that a new designation of a County Highway System be made at this time.

"Therefore be it resolved, that the County Highway System proposed and described by a resolution of this Board adopted May 2nd, 1939 and described on a map and designated as Exhibit "A" and attested and sealed by the County Auditor of Jackson County, South Dakota, be, and the same is hereby declared to be the Highway System of Jackson County, South Dakota.

"Above resolution adopted this 6th day of June, 1939."

Thereafter, and on June 27, 1939, the South Dakota State Highway Commission adopted a resolution reciting:

"That, whereas, a resolution has been presented by the Board of County Commissioners of Jackson County, South Dakota, requesting certain changes in the County Highway System, as hereinafter described;

"And, whereas it appears that the said Board of County Commissioners has complied with all the regulations in regard to the proposed change, and the State Highway Commission being fully advised in the matter, now, therefore,

"Be it resolved by the State Highway Commission to abandon all of the present county Highway System as on record, and in its place designate a new County Highway System, described as follows: * * *" (Here follows description of Road No. 11, upon which is located the bridge in controversy in this action).

Section 28.0302, South Dakota Code 1939, provides that no county highway system shall be changed except by authority of and in accordance with a resolution of the State Highway Commission. There was introduced in evidence a map showing the county highway system of Jackson County, which included this road and bridge, and it was shown that this was the map filed in the office of the County Auditor and also in the office of the State Highway Commission. There is no evidence in the record showing any change in this county highway system after July 1, 1939, nor, indeed, any change after June 27, 1939. There apparently was a change effected through the adoption of the resolutions by the county commissioners on May 2, 1939, and June 6, 1939, and by the adoption of the resolution by the State Highway Commission on June 27, 1939. With the adoption of the resolution by the State Highway Commission on June 27, 1939, the county highway system became re-established and the State Highway Commission...