Owens v. State Highway Dept.

• Citation: 163 S.E. 473,165 S.C. 180
• Decision Date: 09 March 1932
• Docket Number: 13364.
• Parties: OWENS v. STATE HIGHWAY DEPARTMENT.
• Court: United States State Supreme Court of South Carolina

163 S.E. 473

165 S.C. 180

OWENS v. STATE HIGHWAY DEPARTMENT.

No. 13364.

Supreme Court of South Carolina

March 9, 1932

Appeal from Common Pleas Circuit Court of Barnwell County; William H. Grimball, Judge.

Action by Paul H. Owens against the State Highway Department. Verdict for plaintiff.

From orders overruling motions for directed verdict and new trial defendant appeals.

Judgment reversed, and cause remanded, with directions.

John M Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst Attys. Gen., and Harley & Blatt, of Barnwell, for appellant.

R. C Holman and Brown & Bush, all of Barnwell, and W. C. Wolfe, of Orangeburg, for respondent.

BONHAM J.

The plaintiff brought his action in December, 1927, to recover damages for personal injuries which he alleges he sustained November 26, 1927, through a collision of plaintiff's automobile with a motor vehicle in charge of the state highway department.

Defendant demurred to the complaint, which demurrer was overruled. Thereupon defendant answered. Before the trial of the case, the Act of 1928 (35 St. at Large, p. 2055), which regulates the bringing of actions against the highway department for injuries and damages arising from defects in highways and/or from the negligent handling of motor vehicles while actually engaged in repairs or construction of a highway, was passed. Whereupon defendant served a supplemental answer, and also demurred to the jurisdiction of the court. At the call of the case for trial, defendant argued its demurrer, and, when it was overruled, went to trial, but preserved in the record its objections to the jurisdiction of the court. The jury was instructed that the plaintiff was limited to a recovery not exceeding $4,000. There were three mistrials; on the fourth trial plaintiff was given a verdict of $2,000. A motion for new trial was made and refused. This appeal followed.

It is necessary to set out the pleadings at some length.

The complaint alleges that defendant is a department of the government of the state, and has charge of certain public highways therein; that authority to sue it is given by the act of the General Assembly known as the act of 1925, and acts amendatory thereof; that on the 26th day of November, 1927, plaintiff was traveling in his automobile on public highway No. 3 in Barnwell county when, in consequence of a defect in the highway, and of the mismanagement of a truck, tractor, or other instrumentality under the control or supervision of defendant, there was a collision between plaintiff's car and defendant's truck, or tractor, by which plaintiff suffered serious and grievous personal injuries, including a fracture of the skull; that he suffered great pain and anguish, and was put to heavy expense and loss of time, that the collision was due to the willful, wanton, reckless, careless, and negligent acts of the defendant, in the particulars set out; that plaintiff did not bring about his injuries, nor by his own act did he negligently contribute thereto.

To this complaint the defendant demurred; because that defendant was an agency of the state government, and this is a suit against the state in its sovereign capacity, which cannot be maintained without express authority, and there is no valid legislative authority to maintain the action set out in the complaint, hence the court is without jurisdiction to hear and determine it; that the statutory law does not create any actionable liability for the acts and conduct set out in the complaint; that it appears upon the face of the complaint that the alleged injury was not due to the negligence of the defendant, but to the combined negligence of plaintiff and the employees of defendant, for which defendant is not liable; that it appears on the face of the complaint that the action is based on negligence, willfulness, and wantonness, for which defendant is not liable.

The demurrer was overruled by Judge Shipp in a short order which does not give the grounds upon which it is based.

Defendant answered, setting up a general denial; that the accident and injuries were not due to any defect in the highway, nor to any negligence or mismanagement of any motor vehicle or tractor under the control or supervision of the defendant, but wholly to the negligence, carelessness, and recklessness of the plaintiff.

Before the case came to trial the act of 1928, regulating the conditions upon which the highway department may be sued, was passed. Defendant filed a supplemental answer, setting up its same defenses and the additional defense that the act or acts under which the action was brought were repealed by the Act of March 10, 1928; which act required that, as a condition precedent to the bringing of such action, a claim must be filed with the highway department, and no such claim had been filed; that the act of 1928 provided that no suit shall be brought for personal injuries in an amount exceeding $4,000, and for property damages in an amount exceeding $1,500, whereas this action is for $50,000.

Defendant demurred on the same grounds; the demurrer was overruled by Judge Grimball, but the order overruling it does not appear in the record, nor are the grounds therefor stated. There was a verdict for plaintiff. Motions for directed verdict and new trial for defendant were made upon substantially the issues included in the pleadings, and the alleged failure and insufficiency of evidence. Both the motions were overruled, and defendant appeals.

The exceptions recapitulate the questions made in the answers and demurrers, and ask reversal for the refusal to direct verdict for defendant on the evidence. It is not necessary to consider those in detail.

The cardinal question in the case is this: The action was based upon a claim for damages for personal injuries which it is alleged were sustained in November, 1927, and the action was begun in December, 1927. It is conceded that no claim was filed with the highway department; the action is for $50,000, actual and punitive damages. The act of 1928 was subsequently passed. Can this action, in this form, be maintained? Did the act of 1928 repeal the act of 1925? If it did, in what state were claims for injuries arising before its passage, and actions begun, left?

The Act of March 10, 1928, No. 1055, 35 Statutes at Large, p. 2055, is an act to permit the state highway department to be sued and naming the conditions upon which suit may be brought. It provides that: "Any person, firm or corporation who may suffer injury to his or her person or damage to his, her or its property by reason of a defect in any State Highway, or by reason of the negligent repair of any State Highway, or by reason of the negligent operation of any vehicle or motor vehicle in charge of the State Highway Department while said vehicle or motor vehicle is actually engaged in the construction or repair of any of the said highways, may bring suit against the State Highway Department for the actual amount of said injury or damage not to exceed in case of property damaged the sum of fifteen hundred dollars, and in case of personal injury or death, not to exceed the sum of four thousand ($4,000.00) dollars: Provided, That the State Highway Department is hereby authorized and empowered to settle or compromise any claim in an amount not exceeding three hundred ($300.00) dollars."

Section 2 of the act provides that the person, firm, or corporation bringing the action must allege and prove that he, she, or it did not bring about the injury by his, her, or its own negligence, nor negligently contribute thereto.

Section 3 provides that a claim must be filed with the highway department within ninety days after the alleged injury, giving the date, place of injury, and amount claimed. This must be sworn to. Suit, if any, must be commenced within six months from date of injury. It is provided that the time limits for giving notice and commencing suit shall not apply in cases of injury or damages already sustained, or claims already filed with the highway department, which may be compromised or settled under the provisions of section 1.

This act has been fully considered and has been several times construed by this court. Practically every question made in this appeal, dependent upon the provisions of this act, has been determined in the several cases in which the court had the act under review.

In the case of Fann v. State Highway Department, 155 S.C. 219, 152 S.E. 429, 430, the action was begun November 7, 1927. From a verdict for plaintiff, defendant appealed. This court said:

" The suit, one against a department of the State government, was, of course, actually a suit against the state. The action could not be maintained, therefore, except by the express consent of the state; and that consent had to be given by legislative authority. It is evident that the plaintiff sought to bring and maintain the action under the authority of Act No. 189 of the General Assembly of the year 1925

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