Randal v. State Highway Dept.

• Decision Date: 02 May 1929
• Docket Number: 12650.
• Citation: 148 S.E. 57,150 S.C. 302
• Parties: RANDAL v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

148 S.E. 57

150 S.C. 302

RANDAL v. STATE HIGHWAY DEPARTMENT.

No. 12650.

Supreme Court of South Carolina

May 2, 1929

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

Action by Elvie Randal, as administratrix of the estate of Alex Randal, deceased, against the State Highway Department of South Carolina. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The statement in the transcript of record is as follows:

"This is an action for the wrongful death of plaintiff's intestate. Alex Randal, plaintiff's intestate, was employed by the state highway department of South Carolina on March 29, 1927, as a laborer doing repair work on state highway No. 26, between Kingstree and what is known as Bryant's cross roads in Williamsburg county. The said Randal was put to excavating clay upon the side of the highway which was an embankment on the right of way of said highway and about 12 feet high. While engaged in excavating clay from said embankment same caved in and fell down upon him, completely burying him with earth and clay, thereby causing his death. On June 20, 1927, the plaintiff, as administratrix of the estate of the said Alex Randal brought action in the court of common pleas for Williamsburg county, by service of summons and complaint. On August 23, 1927, respondent served notice of grounds of demurrer to the complaint, and said demurrer was heard by his honor, J. H. Johnson, presiding judge, at the fall term 1927 court of common pleas for Williamsburg county. By order dated December 23, 1927, Judge Johnson sustained the demurrer. From said order appellant duly appealed."

Order of Judge Johnson sustaining demurrer:

"This is an action for alleged wrongful death of plaintiff's intestate. The defendant demurred to the complaint upon the grounds:

"That the state highway department of South Carolina is an agency of the state government, and a suit against such department is in effect a suit against the state in its sovereign capacity, and no action can be maintained against the state or one of its departments of governmental agencies without express legislative sanction therefor in conformity with the Constitution of the state, and this court is without jurisdiction to hear and determine the alleged cause of action stated in the complaint, for the reason that there is no statute authorizing a suit against this department or creating any liability or cause of action against this department for the acts alleged in the complaint.

"That the statutory law of this state does not create any actionable liability on the part of the state highway department of South Carolina for the acts and conduct complained of in the complaint.

"That it appears upon the face of the complaint that the injury complained of in the complaint, if caused by any neglience, was caused by the combined negligence of the deceased and the employees of this defendant, for which this defendant is not liable.

"That it appears upon the face of the complaint that the injury complained of, if caused by the negligence of any one connected with this defendant, was caused by the negligence of employees of the state highway department, for which negligence this defendant is not liable .

"That it appears upon the face of the complaint that the injury complained of, if caused by any negligence of this defendant, was caused by the negligence of this defendant's employees in not furnishing plaintiff's intestate a safe place to work, for which this defendant is not liable, and no cause of action exists under the law against this defendant therefor.

"From the concluding allegation of paragraph 3 of the complaint it appears that plaintiff's intestate was instantly killed, and the demurrer fairly raises the following questions:

"1. Does Act No. 189 of the Acts of 1925, amending section 2948, volume 3, Code of 1922, imposing liability upon the state highway department for the death of a person 'through a defect or negligent repair of any road, causeway, ferry or bridge under the control and supervision of the state highway department of South Carolina,' or is the liability created by such act restricted to ' injury or damage to person or property?'

"2. Is any liability imposed upon the state highway department for its failure to furnish its employees a reasonably safe place in which to work?

"3. Is the state highway department responsible for the negligence of one of its employees resulting in the death of another of its employees?

"In this state neither the commonwealth, nor any of its political subdivisions, is liable in action ex delicto unless made liable by express enactments of the General Assembly, except where the acts complained of, in effect, constituted a taking of private property for public use without just compensation. Young v. City Council of Charleston, 20 S.C. 116, 47 Am. Rep. 827; Mullinax v. Hambright, 115 S.C. 22, 104 S.E. 309; Faust v. Richland County, 117 S.C. 251, 109 S.E. 151; Derrick v. Columbia, 122 S.C. 29, 114 S.E. 857; Kneece v. Columbia, 128 S.C. 375, 123 S.E. 100.

" It is equally as well settled that a right of action for wrongful death did not exist at common law, and that Lord Campbell's Act (sections 367-369, volume 1, Code of 1922) created a new right of action and not a mere revival. In re Mayo's Estate, 60 S.E. 401, 38 S.E. 634, 54 L. R. A. 660; Berger v. Electric Co., 93 S.C. 372, 76 S.E. 1096; Bennett v. Railway, Gas & Electric Co., 97 S.C. 27, 81 S.E. 189; Rish v. S. A. L. Railway Co., 106 S.C. 143, 90 S.E. 704.

"Even when death did not result 'personal actions ex delicto, at common law, died with the person.' All v. Barnwell County, 29 S.C. 161, 7 S.E. 58; Bennett v. Railway, Gas & Electric Co., supra. See 1 Corpus Juris, § 339, p. 184, and the South Carolina cases cited thereunder on page 185.

"No right of action against the state's political subdivisions for injuries to the person or property (as distinguished from death), occasioned by defects in highways and streets, existed in this jurisdiction until the passage of the statutes now embraced in sections 2948 and 4478, vol 3, Code of 1922. All v. Barnwell County, supra; Foster v. City of Union, 129 S.C. 257, 123 S.E. 839; Sirrine v. State, 132 S.C. 241, 128 S.E. 172; 25 R. C. L. 407. And no effort was ever made to impose a general liability upon the state for injuries to person or property in such cases until the passage of the act of 1925.

"But the act of 1874, now section 2948 of the Code, imposing liability upon counties in such instances in favor of 'Any person who shall receive bodily injury or damage in his person or property,' did not authorize an action against the county for the death of a person occasioned by a defective highway. All v. Barnwell County, 29 S.C. 161, 7 S.E. 58, where the court recognized and in effect declared that 'death' is entirely different from "bodily injury' or 'injury to the person.' And in the case last cited it was expressly held that such act (now section 2948 of the Code) did not create a liability for death although it was pointed out in that decision that Lord Campbell's Act, authorizing an action for wrongful death generally, had been enacted in this state in 1859, 15 years before the passage of what is now Section 2948.

"As a result of this decision, though not until 1903, the statute now embraced in section 2950, vol. 3, Code of 1922, was passed for the purpose of imposing liability in such cases upon (1) counties and (2) municipalities when death resulted, the act specifically referred to sections 1347 and 2023 of the Code of 1902, which sections, under the decision in All v. Barnwell County, supra, did not impose liability for death, but merely for injury.

"Since no effort was made to create a liability of any kind against the state for injuries occasioned by defective highways under its control until the year 1925, and in view of the decision in All v. Barnwell county, supra, it is significant that such liability was imposed by an amendment of section 2948 of the Code, rather than by an amendment of both sections 2948 and 2950.

"Section 2948 created liability for 'bodily injury' or damage to the person. Section 2950 created liability for ' death,' and yet the General Assembly, in imposing liability upon the state highway department did so by amendment to the former section and by way of a 'Proviso' thereto, in language showing clearly that its purpose was to establish liability only for 'injury or damage to person' rather than liability for 'death.' When it saw fit to impose liability for 'death' upon (1) Counties and (2) Municipalities it spoke in no uncertain terms by the Act of 1903, now Sec. 2950, and it would have been a simple matter to have included 'death' in the Act of 1925, if it had intended to create a liability for death.

"It seems clear, therefore that, (a) since a right of action for wrongful "death' did not exist at common law, (b) since neither the state, nor any of its governmental agencies, was liable at common law in actions ex delicto (except where the acts or conduct complained of, in effect, constituted a taking of private property without due process of law, that is, without just compensation), (c) since the General Assembly first imposed liability upon certain of the State's governmental agencies (counties and municipalities, sections 2948 and 4478, Code of 1922) merely for damage to property and for 'injury to the person' not resulting in death, later extending the liability of counties and municipalities

...