Jensen v. Juul

• Decision Date: 25 February 1938
• Docket Number: 8097.
• Citation: 278 N.W. 6,66 S.D. 1
• Parties: JENSEN v. JUUL et al.
• Court: South Dakota Supreme Court

278 N.W. 6

66 S.D. 1

JENSEN v. JUUL et al.

No. 8097.

Supreme Court of South Dakota

February 25, 1938

Appeal from Circuit Court, Turner County; L. L. Fleeger, Judge.

Action by Gertrude A. Jensen, as administratrix of the estate of Thomas P. Jensen, deceased, against Katherine Juul, the Town of Irene, and others to recover for the death of her intestate, who was fatally injured when Katherine Juul drove her automobile over an embankment and struck intestate while he was witnessing a ball game at a park maintained by the town. From an order overruling the demurrer of the Town of Irene, it appeals.

Order affirmed.

W. W French, of Yankton, for appellant.

Everett A. Bogue, of Parker, for respondent.

ROBERTS Presiding Judge.

This is an action by the administratrix of the estate of Thomas P Jensen against Katherine Juul, the Irene Independent Consolidated School District, and the Town of Irene for negligently causing the death of plaintiff's intestate. The defendant school district demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action, and its demurrer was sustained. The defendant Town of Irene also demurred to the complaint on the same ground, and, from an order overruling the demurrer, the defendant town appeals.

The complaint alleges, in substance, that the Irene Independent Consolidated School District is the owner and in possession of a tract of land in Hartwell's addition to the Town of Irene; that Clark avenue runs along the west side of this tract and intersects at right angles B street which extends along the north side; that the level of the tract is approximately seven feet lower than B street; that from the level of this street to the tract there is a steep and precipitous embankment; that the defendant school district and the defendant town maintain on this tract a ball park equipped with floodlights; that these defendants caused to be constructed partially within B street two concrete benches one above the other, along the embankment; and that they at no time constructed or erected along the south shoulder of B street any danger signs or guard rails.

It is further alleged that Thomas P. Jensen was a spectator at a baseball game on the evening of September 25, 1936; that he paid an admission charge and was directed to a seat upon the concrete benches on the north side of the baseball park; that there was a row of automobiles parked along B street above the benches; that the glare of the floodlights on the playing field so concealed the shoulder of B street and the precipitous embankment as to be extremely dangerous for motorists intending to park there; that the defendant Katherine Juul, intending to park along the south shoulder of B street, drove her automobile over the embankment striking plaintiff's intestate and causing him injuries from which he died; that the accident was caused "by reason of the carelessness and negligent driving of said Katherine Juul, and by reason of the defective construction of the said street, and the absence of warning signs, barricades or guard rails along the said B. Street and particularly along the said south shoulder of B Street and by reason of the negligence of the said Katherine Juul and the defendants town and school district in failing to place barriers along the shoulder of said B Street as required by law, and in permitting said concrete benches to remain in an unguarded and unsafe condition"; and that the concurring acts of negligence and carelessness of the defendants were the proximate cause of the death of decedent.

Plaintiff seeks to set forth a cause of action under sections 2929, 2931, Rev.Code 1919, permitting recovery for death caused by wrongful act. At common law no action will lie to recover damages for the wrongful death of a human being. Rowe v. Richards, 35 S.D. 201, 151 N.W. 1001, L.R.A.1915F, 1075, Ann. Cas.1918A, 294; Roster v. Inter-State Power Company, 58 S.D. 521, 237 N.W. 738. The sections referred to create rights and recognize remedies unknown to the common law. In effect they provide that an action may be maintained whenever death is caused by a wrongful act, neglect, or default, which would have entitled the person injured to maintain an action if death had not ensued; that the action is for the benefit of members of deceased's family or next of kin, although it is brought in the name of the administrator or executor of the person for whose death the action is brought. These provisions do not provide for the survival of a cause of action in tort for personal injury, but create a new cause of action. Rowe v. Richards, supra; Stratton v. Sioux Falls Traction System, 49 S.D. 113, 206 N.W. 466; Ulvig v. McKennan Hospital, 56 S.D. 509, 229 N.W. 383. "The corporation which, or the person who, would have been liable, if death had not ensued," are made liable. The statute does not expressly make a municipal corporation liable, and defendant town contends that the term "corporation" in this statute has reference only to private corporations, and that the statute does not impose liability on municipal corporations.

Corporations may be classified as public, quasi public, and private. Public corporations are corporations created "for the government of a portion of the state." Section 242, Rev.Code 1919. Although a corporation may be public, and not private, because established and controlled by the state for public purposes, it does not follow that such a corporation is in effect the state and that the same immunity from liability attaches. Generally, in reference to liability for torts a municipal corporation has a dual character. It is vested with powers of a governmental character for the administration of general laws of the state and no liability for tort ordinarily attaches for damages caused by negligence while in the exercise of such powers. In so far, however, as municipal corporations exercise powers not of this character, there is no immunity from liability. Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438, 439, 29 A.L.R. 841. On the other hand, counties, civil townships, and school districts classified as quasi public corporations are merely instrumentalities of the state for the purpose of carrying into effect the functions of government, and, as such, are not liable for damages caused by neglectful performance of such duties, unless cause of action is expressly given by statute. Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219, 49 Am.St.Rep. 881; Plumbing Supply Company v. Board of Education, 32 S.D. 270, 142 N.W. 1131.

We believe that it was within the contemplation of the Legislature to permit recovery in all instances where the person injured could have maintained an action and recovered damages if death had not ensued. Statutes imposing liability for death caused by wrongful act are generally construed in other...