Reed v. Medlin, 0409

• Decision Date: 12 November 1984
• Docket Number: No. 0409,0409
• Citation: 328 S.E.2d 115,284 S.C. 585
• Court: South Carolina Court of Appeals
• Parties: Kitty Katherine REED, Executrix of the Estate of Wiley Dempsey Reed, Appellant, v. N.R. MEDLIN, P.L. Morris, and South Carolina Department of Highways and Public Transportation, of whom South Carolina Department of Highways and Public Transportation is Respondent. and Henry M. CHAPLIN, Appellant, v. N.R. MEDLIN, P.L. Morris, and South Carolina Department of Highways and Public Transportation, of whom South Carolina Department of Highways and Public Transportation is Respondent. (Three Cases) . Heard

Page 115

328 S.E.2d 115

284 S.C. 585

Kitty Katherine REED, Executrix of the Estate of Wiley

Dempsey Reed, Appellant, v. N.R. MEDLIN, P.L. Morris, and South Carolina Department of

Highways and Public Transportation,

of whom South Carolina Department of Highways and Public

Transportation is Respondent.

and

Henry M. CHAPLIN, Appellant, v. N.R. MEDLIN, P.L. Morris, and South Carolina Department of

Highways and Public Transportation,

of whom South Carolina Department of Highways and Public

Transportation is Respondent. (Three Cases)

No. 0409.

Court of Appeals of South Carolina.

Heard Nov. 12, 1984.

Decided March 7, 1985.

Harris A. Marshall, J.C. Nicholson, Jr., and James C. Williams, Orangeburg, for appellant.

T. Travis Medlock, Atty. Gen., and Richard D. Bybee, Asst. Atty. Gen., Columbia, for respondent.

M. Richbourg Roberson, Senior Asst. Atty. Gen., Columbia, for amicus curiae Paul W. Cobb.

BELL, Judge:

These consolidated cases were brought against the State Highway Department for wrongful death, decedent's pain and suffering and property damage arising from a motor vehicle collision. Reed and Chaplin appeal from an order denying their motion to add the Chief Highway Commissioner as a party defendant. Reed further appeals from an order granting summary judgment to the Highway Department as to the survival action for pain and suffering. We affirm.

On September 12, 1979, Wiley Reed was allegedly burned to death in a collision while stopped at a roadblock set up by two highway patrolmen. A tractor-trailer truck loaded with logs allegedly approached the roadblock from a sharp curve and crashed into his car, causing it to explode into flames. Henry Chaplin, who was also stopped at the roadblock, allegedly suffered extensive property damage as a result of the collision.

Reed's widow and executrix, Kitty Katherine Reed, filed both wrongful death and survival actions against the two highway patrolmen and the Highway Department. Chaplin filed suit for property damage against the same defendants. Subsequently, Reed and Chaplin moved to amend their complaints to join Paul W. Cobb, the Chief Highway Commissioner, as a party defendant. The circuit court denied these motions. At a later hearing, the Highway Department moved for summary judgment in Reed's survival action, contending that a survival action cannot be maintained against the Highway Department. The court granted summary judgment to the Department.

I.

Reed claims the granting of summary judgment was error. She argues that the right of action for personal injury granted by Section 57-5-1810, Code of Laws of South Carolina, 1976, ¹ survives the death of the injured party by reason of the general survival statute, Section 15-5-90, Code of Laws of South Carolina, 1976. ²

Neither the State nor any of its political subdivisions is liable in an action ex delicto unless express statutory provision to that effect has been made. Tucker v. Kershaw County School Dist., 276 S.C. 401, 279 S.E.2d 378 (1981). This rule applies to actions brought against the Highway Department. Randal v. South Carolina State Highway Dept., 150 S.C. 302, 148 S.E. 57 (1929). Statutes permitting suit against the Highway Department for personal injury must be strictly construed, since they waive the State's normal immunity from tort liability. Stanley v. South Carolina State Highway Dept., 249 S.C. 230, 153 S.E.2d 687 (1967).

Prior to the creation of the Highway Department in 1917, the maintenance of public highways was vested in the County Commissioners of the several counties. By a statute enacted in 1874, suits for personal injury caused by a defect in a highway lay against the county in which the injury occurred, not against the State. See Section 6, Act No. 633 of 1874, 15 Stat. at Large 785. This statute, as amended, was codified as Section 2948 of the 1922 Code. It was the predecessor of present Code Section 57-5-1810.

After the Highway Department was created, the General Assembly amended Section 2948 of the 1922 Code to permit suits against the Highway Department for personal injury caused by defects in any highway under the control and supervision of the Department. See Act No. 189 of 1925, 34 Stat. at Large 287. In 1928, substantially the same provision was separately enacted in a statute pertaining only to the Highway Department. See Act No. 1055 of 1928, 35 Stat. at Large 2055. The 1928 statute was recodified in 1951. See Section 84, Act No. 329 of 1951, 47 Stat. at Large 498. It appears, with amendments, as Section 57-5-1810 in the present Code.

At common law, personal actions ex delicto die with the person. Bennett v. Railway, Gas & Electric Co., 97 S.C. 27, 81 S.E. 189 (1914). Therefore, unless a statute specifically provides for survival of an action for personal injury, it does not lie after the injured person's death. Although Section 57-5-1810 creates a right of action for personal injury against the Highway Department, it contains no provision for survival of such an action in the event the injured person dies. Reed argues, however, that the cause of action created by Section 57-5-1810 survives by virtue of the general survival statute.

Our Supreme Court has held the general survival statute does not permit an action against a county of this State for pain and suffering accruing to a decedent as a result of injury caused by a defect in a highway. See Chewning v. Clarendon County, 168 S.C. 351, 167 S.E. 555 (1933). Where death results to one injured by a defect in a highway, the exclusive remedy is an action under the wrongful death statute. Id.

The only material difference between Chewning and this case is that the former was a suit against a county. Since Section 57-5-1810 was derived from and is virtually identical to the predecessor statutes creating county liability for defects in a highway, Chewning must be regarded as controlling authority in this case. We, therefore, hold that the general survival statute does not apply to the cause of action created by Section 57-5-1810. The circuit court's order granting summary judgment to the Highway Department in Reed's survival action is affirmed.

II.

Reed and Chaplin also assert the circuit court erred in refusing to permit joinder of the Chief Highway Commissioner as a party defendant.

A motion to amend a complaint to join an additional party is addressed to the discretion of the trial judge subject to review on appeal. Robinson v. South Carolina State Highway Dept., 241 S.C. 137, 127 S.E.2d 286 (1962). In this case, the circuit...