Morris v. South Carolina State Highway Dept.

• Decision Date: 13 May 1975
• Docket Number: No. 20011,20011
• Citation: 215 S.E.2d 430,264 S.C. 369
• Court: South Carolina Supreme Court
• Parties: Joyce B. MORRIS, as Administratrix of the Estate of Jambo Buck Morris, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

Page 430

215 S.E.2d 430

264 S.C. 369

Joyce B. MORRIS, as Administratrix of the Estate of Jambo Buck Morris, Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant.

No. 20011.

Supreme Court of South Carolina.

May 13, 1975.

G. Dana Sinkler of Sinkler, Gibbs, Simons & Guerard, Charleston, Atty. Gen. Daniel R. McLeod and Staff Atty. John D. Choate, Columbia, for appellant.

Paul N. Uricchio, III, and O. Grady Query of Uricchio, Howe & Krell, Charleston, for respondent.

LITTLEJOHN, Justice:

This action was initiated by the respondent, Joyce B. Morris, as administratrix of the estate of Jimbo Buck Morris, deceased, on behalf of the statutory beneficiaries of Jimbo Buck Morris under the provisions of the Wrongful Death Statute, § 10--1951 et seq., Code of Laws of South Carolina, 1962. The complaint alleges a cause of action pursuant to the Governmental Motor Vehicle Tort Claims Act, Code § 10--2621 et seq. It alleges that the deceased was killed by reason of the negligent operation of a state highway patrol motor vehicle driven by a state highway patrolman.

The South Carolina State Highway Department, appellant, in its answer denied liability, asserting, Inter alia, that the patrolman was not on duty when the accident occurred and therefore was not on 'official business' of the department within the meaning of Code § 10--2623.

The jury returned a verdict for the respondent in the amount of $6,000. At appropriate stages of the trial, counsel for the appellant moved for a directed verdict and for judgment notwithstanding the verdict, on the ground that there was no evidence before the court warranting the conclusion that the patrolman was in and about the official business of the Highway Department at the time of the accident. The motions were overruled. The Department has appealed, submitting two questions to this Court. In our view, a ruling on the first question is dispositive of the entire appeal. That issue, as copied from the respondent's brief, is as follows:

'Was there any competent evidence from which the jury could infer that the operator of defendant's State Highway Patrol vehicle was in and about the official business of the State Highway Department within the meaning of § 10--2623, of the Code of Laws of South Carolina for 1962, as amended?'

Under the doctrine of sovereign immunity a state may not be sued in tort except as permitted by the legislature. The legislature has granted that authority under Code § 10--2623 in verbiage as follows:

'Any person sustaining an injury by reason of the negligent operation of any motor vehicle while being operated by an employee of a governmental entity While in and about the official business of such governmental entity may recover in an action against such governmental entity such actual damages as he may sustain; . . ..' (emphasis added)

The facts out of which this action arises are not greatly if at all, in dispute. Ernest H. Lilienthal is a highway patrolman stationed for duty at Beaufort, South Carolina. On Sunday, May 21, 1972, he was off duty and drove, with his wife in his marked patrol car to Charleston for the purpose of visiting with his relatives. He had permission of his superiors to use the vehicle for such a purpose, and he was not to be on duty again in Beaufort until Midnight of Monday. About 8:30 p.m., Monday, May 22, he was returning from Charleston to Beaufort, along with his wife, on highway number 17 when the accident occurred. He was in uniform, but testified that he was at the time performing no official function for the State Highway Department. After the accident occurred, the patrolman turned on his blue light and radioed for assistance.

We are called upon to determine the narrow question: Was the patrolman 'in and about the official business' of the State Highway Department at the time of the accident and ensuing death? When this Court has been called upon to interpret statutes waiving the State's immunity from suit, we have consistently held that while the legislative intent is not to be defeated, the statute must be strictly construed. Jeff Hunt Machinery Co. v. South Carolina State Highway Dept., 217 S.C. 423, 60 S.E.2d 859 (1950), Rushton v. South Carolina State Highway Dept., 207 S.C. 112, 34 S.E.2d 484 (1945).

This Court has never been called upon heretofore to interpret the meaning of 'official business' as it relates to the Tort Cliams Act. We have in many cases ruled upon kindred issues in Workmen's Compensation cases. In those cases the Act is given a liberal construction in an effort to protect workmen. The cases relied upon by the respondent are not particularly helpful in determining the issue now before the Court. In the Workmen's Compensation cases the issue normally is: 'Did the injury of the claimant arise out of and in the course of the employment?' In those cases the issue simply is not the same. The rule of construction is also different.

We have consistently held that it is the duty of the court to construe the Acts waiving sovereign immunity so as to uphold the power of the State to refuse to be sued by a citizen in its own court, except in those instances where the State has expressly consented to be sued. It is the burden of one seeking to sue the State to show that the State has given the necessary consent. We keep in mind the fact that inasmuch as the right to sue is purely statutory, the legislature has the power not only to restrict such right but to withhold it, or withdraw it altogether.

In waiving sovereign immunity by the statute quoted, we think that the legislature has recognized the fact that motor vehicles owned by governmental entities would be driven other than on official business. It is apparent that the legislature did not intend to extend the waiver to such operation. On the other hand, it has limited the waiver to operations involving the official business of the governmental entity. We are not at liberty to extend the right to sue beyond the waiver.

Argument of counsel that a patrolman has the right to arrest at any time, and argument that the very presence of a marked patrol car on the highway has a good influence upon the riding habits of motorists, and further argument that a patrolman might be of some service in case of an emergency such as a wreck between other vehicles are impressive. However, we do not think that such possible remote benefit to the department and to the government is sufficient to warrant a finding that the patrolman, under the facts of this case, was 'in and about the official business' of a governmental entity.

We conclude that the trial judge should have either granted the directed verdict, or the motion for judgment notwithstanding the verdict and, accordingly, the judgment of the lower court is

Reversed.

MOSS, C.J., and LEWIS, J., concur.

BUSSEY and NESS, JJ., dissent.

BUSSEY, Justice (dissenting):

This case does not involve, I think, any complex issue of statutory construction, strict or otherwise. Under the settled law of this State governmental entities have no business except 'official business' and therefore the statutory phrase 'while in and about the official business of such governmental entity' merely imposes the requirement that the employee be about the business of the employer. If such language had been omitted I think the meaning and effect thereof would have to be implied.

The purpose of code section 10--2623 is to put governmental entities, subject to certain statutory limitations, in the same position as such would have occupied if private employers. By waiving sovereign immunity the state did not waive its other substantive defenses. See 81 C.J.S. States, § 220b; West's Decennial Digest, k198. Part of the body of substantive law is the doctrine of respondeat superior, and the requirement quoted from section 10--2623 does nothing more than limit liability to cases where the governmental entity, as employer or master, would be liable for the acts of the servant under the doctrine of respondeat superior, the same as if such governmental entity were a private employer.

It is elementary that in considering whether there was any competent evidence from which it could be reasonably inferred that the patrolman was in and about the business of his master at the time of the fatal accident, the entire evidence and all the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the plaintiff-respondent. We proceed to state the evidence and the inferences therefrom in the light of that principle.

The patrolman was in uniform and was operating a marked Highway Patrol vehicle owned by the South Carolina Highway Department, on one of the principal highways of the state. He had his patrol radio on to keep him in contact with the tower and he turned on his blue light after the accident and death of the plaintiff-respondent. He used his radio to call in for assistance.

He admittedly was driving the patrol vehicle with the full knowledge and consent of his superiors and customarily did so whether its use was private, official or both. All gasoline and maintenance of the vehicle were furnished by the department. It is admitted that the patrolman was empowered to make an arrest at any time and that his mere presence on the highway in uniform and in a patrol vehicle served to promote safer driving by other motorists whether or not the patrolman was, at the moment, on a specified duty assignment. Under code section 46--854 it is the duty of patrolmen to patrol the highways of the state for the purpose of enforcing the laws of the state relative to highway traffic and motor vehicles. From the practice of the Highway Department of allowing patrolmen to use without limitations the patrol cars assigned to them, for private purposes, at no cost whatever to the patrolmen for either fuel or maintenance, it is readily inferable that the department encourages the practice of patrolmen operating marked...