Ouzts v. State Highway Department

• Decision Date: 23 June 1931
• Docket Number: 13187.
• Parties: OUZTS v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

159 S.E. 457

161 S.C. 21

OUZTS v. STATE HIGHWAY DEPARTMENT.

No. 13187.

Supreme Court of South Carolina

June 23, 1931

Appeal from Common Pleas Circuit Court of Greenwood County; J. Henry Johnson, Judge.

Action by J. O. Ouzts, as guardian ad litem of Nina B. Ouzts against the State Highway Department. Judgment for plaintiff and defendant appeals.

Reversed and complaint dismissed.

John M Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., and W. L. Daniel, of Greenwood, for appellant.

W. H. Nicholson and S. H. McGhee, both of Greenwood, for respondent.

STABLER J.

This is an action for damages for personal injuries, brought under the act of 1928 (35 Stat. p. 2055). The complaint alleges that "the plaintiff *** is the duly appointed guardian ad litem of his daughter, Nina B. Ouzts, a minor six years of age"; that, on September 30, 1929, while walking along one of the public highways of the state, she was struck and injured by a truck owned and operated by the state highway department; that neither she nor the persons charged with her custody and control brought about her injuries or negligently contributed thereto, but that such injuries were due solely to the negligent acts of the defendant and its agents in the following particulars:

"(a) In operating said motor vehicle or truck at a high and reckless rate of speed in violation of law.

"(b) In operating said motor vehicle or truck to the left of the center of the highway in violation of law.

"(c) In operating said motor vehicle or truck without a proper lookout.

"(d) In operating said motor vehicle or truck with defective brakes and equipment."

The defendant admitted that, though a department of the state government, it may be sued on certain causes of action under conditions provided by law, but denied that "the plaintiff or the complaint in this action comes within the provisions of the statute." It also denied that Nina B. Ouzts was injured in the manner set out in the complaint or through any negligence of the defendant, and alleged that any injuries she may have sustained were due to her own negligence or "to the negligence of her parent, the plaintiff in this action, in permitting the said child, without proper supervision, to be playing *** in the traveled portion of a highway where the traffic is very heavy, which facts were known to the plaintiff."

The defendant also served notice that it would interpose an oral demurrer on the grounds:

" I. It does not appear in the complaint that the plaintiff, J. O. Ouzts, has suffered any injury to his person, or damage to his property, and he, therefore, has no cause of action against this defendant.

"II. That it does not appear upon the face of the complaint that a claim giving the date and place where the injury or damage occurred, and the amount claimed, has been made out, sworn to and filed with the defendant, as required by law."

The plaintiff thereafter, on April 18, 1930, gave notice of a motion to amend the complaint, by alleging the filing of a claim with the state highway department. On call of the case for trial, the court heard the motions, allowed the amendment, and overruled the demurrer.

At the close of plaintiff's testimony, defendant made a motion for a nonsuit upon the grounds: (1) That a suit against the state highway department being a suit against the state, the court was without jurisdiction of the alleged cause of action attempted to be stated in the complaint, for the reason that the statute law of the state does not "create any actionable liability on the part of the State Highway Department for the acts and conduct complained of in the complaint"; and (2) that there was no testimony showing or tending to show that the truck which struck the child belonged to or was under the control of the highway department, or that it was actually being used in the construction or repair of the highway at the time.

Counsel for plaintiff then asked to be allowed to offer testimony that the truck belonged to the highway department and was engaged in the construction or repair of the highway. The court permitted this to be done, and the defendant then renewed its motion for a nonsuit, which was overruled. At the close of all the testimony, the defendant moved for a directed verdict, on the two grounds stated in its motion for a nonsuit, and the additional grounds that (3) the Act of 1928 attempts to waive immunity from suit only, and does not attempt to create any new liability on the part of the state or to waive its immunity from liability; (4) that if the statute attempts to create any new liability, it contravenes section 11 of article 10 of the Constitution requiring such question to be submitted to a vote of the people; and (5) that there was no proof that a claim had been filed with the state highway department as required by the statute.

On motion of the plaintiff the court allowed the case to be reopened for the purpose of receiving testimony in support of the allegation that a claim had been filed with the highway department. The defendant objected to the admission of this testimony, upon the ground that the proof showed the claim filed was for damage to J. O. Ouzts and not to Nina B. Ouzts. The court overruled the motion, and the jury found for the plaintiff $300. The defendant appeals.

The Attorney General urges with great earnestness that the trial judge committed error in refusing defendant's motion for a directed verdict, made upon the grounds numbered (3) and (4), basing this conclusion upon the decision of this court in Sirrine v. State, 132 S.C. 241, 128 S.E. 172, 173, and the concurring and dissenting opinion of Mr. Justice Cothran in Casualty Company v. Highway Department, 155 S.C. 77, 151 S.E. 887, 891.

The Sirrine Case was an action for damage to an automobile, brought under an act of the Legislature (33 Stat. p. 1689), section 1 of which reads as follows: "That permission is hereby granted N. McL. Sirrine to prosecute an action against the State of South Carolina in any Court of competent jurisdiction, whereby she may seek to recover not exceeding the sum specified in the above preamble, and costs, and that she may proceed in the prosecution of said cause in like manner as all causes arising between individuals or corporations in this State may be conducted: Provided, That nothing in this Act shall be construed into an admission by said State of any facts herein above stated or of any liability of the same on account thereof; And it is further Provided, That the State nevertheless expressly reserves to itself in any action which may be brought hereunder, any defense which would be available to any individual or corporation, defendant in like circumstances."

The state demurred to the action upon two grounds: (1) That the state's liability for the tort of its agents was not waived by the statute; and (2) that the act was a special one where a general law could be made applicable and so violated subdivision 9 of section 34 of article 3 of the Constitution.

The court, in discussing the first ground, pointed out that in Graham v. State, 109 S.C. 301, 96 S.E. 138, it was held that the effect of legislation similar in character or tenor to that in the Sirrine Case was not only to waive immunity from suit, but also to waive the state's legal immunity as a sovereign from liability for causes of action which the Legislature authorized to be made the basis of a suit against the state, and quoted the following from that case as being a cogent reason for the holding: "In construing the act, elementary rules require that we presume that the Legislature knew the law, and, therefore, knew that plaintiff could not sue the state without its consent, and, also, that if the defense stated were set up, it would certainly defeat his action. We must also presume, against the intention to do a futile thing, consent to be sued, and at the same time reserve the right to set up an absolutely certain defense. That construction would make the act self-destructive."

And then proceeded to analyze the statute in the Sirrine Case, and to further say: "If the statute was not intended to give Mrs. Sirrine a right to recover against the state for the tort of one of the state's agents or servants under the principles of law applicable in a suit against a private individual or corporation, the enactment of the statute was an idle gesture. We conclude, therefore, that the application of the primary rule of construction-- that the controlling consideration is legislative intent--requires that the statute be construed as an act which undertakes to waive the state's immunity as a sovereign from liability for the torts of its agents or servants to the extent that would enable Mrs. Sirrine to recover in the action authorized if she were entitled to recover against a private individual or corporation under like circumstances."

In considering the second ground--that the act was a special law where a general law could be made applicable--the court took a different view from that taken in Sandel v. State, 115 S.C. 168, 104 S.E. 567, 13 A. L. R. 1268 (in which it was held that the act there did not create a liability which did not exist before its passage), stating that the act attempted to confer upon Mrs. Sirrine a right denied to all others that is, a right to recover for the tortious acts of the agents and servants of the state; and that the provision of the Constitution, section 2 of article 17, which provides that "the General Assembly may direct by law in what manner claims against the state may be established and adjusted," had no application in that case, for the reason that the act "goes further than merely to direct how a claim shall be established, in that...