Reeves v. City of Easley

• Decision Date: 01 October 1932
• Docket Number: 13478.
• Citation: 166 S.E. 120,167 S.C. 231
• Parties: REEVES v. CITY OF EASLEY.
• Court: South Carolina Supreme Court

166 S.E. 120

167 S.C. 231

REEVES v. CITY OF EASLEY.

No. 13478.

Supreme Court of South Carolina

October 1, 1932

Appeal from Common Pleas Circuit Court of Pickens County; H. F Rice, Judge.

Suit by Boon Reeves against the City of Easley. Judgment for plaintiff, and defendant appeals.

Reversed and complaint dismissed.

Julien D. Wyatt, of Pickens, and Blythe & Bonham, of Greenville, for appellant.

B. F Martin and Price & Poag, all of Greenville, and W. C. Mann and Sam B. Craig, both of Pickens, for respondent.

BONHAM J.

The cause of action upon which plaintiff relies is thus condensed from the complaint: The defendant is a municipal corporation. It maintains a volunteer fire department, of which it has exclusive control. It also maintains a police department for protection of the city and maintenance of law and order. Plaintiff was a member of the volunteer fire department; it was his duty as such fireman to respond to alarms, board the fire trucks, and fight fires; that on April 7, 1930, he and his company responded to an alarm of fire and on the fire truck proceeded rapidly to the scene of the fire; that the police department on such occasions, and at other times, used an automobile to transport police officers on various missions, including the transporting of said officers to fires to assist in preserving order and protecting life, persons, and property; that on this occasion the fire truck was followed by the police car; that when the fire truck reached the scene of the fire, plaintiff sprang off the rear of the truck into the street to go to the fire; that the police car was negligently and recklessly driven so close to the fire truck, and was so mismanaged as to make the city's streets defective and dangerous, and as a result thereof was driven upon plaintiff, inflicting upon him serious and permanent injuries, causing him physical and mental pain and putting him to much expense.

For answer the defendant admits its corporate capacity and that it maintains a fire department and a police department; that the automobile which is alleged to have caused the injury to plaintiff was not driven by a member of the police department, or other officer or agent of the defendant, but by one not an officer or agent of defendant, and without defendant's permission or knowledge; that plaintiff had been for some time a member of the volunteer fire department, was fully cognizant of the dangers of his employment, which he assumed; that plaintiff's injury was caused by his own negligence, or he negligently contributed thereto.

The case came to trial on these issues, before Judge H. F. Rice and a jury, at the October 1931 term of the court of common pleas for Pickens county.

At the close of the testimony for plaintiff, counsel for defendant made a motion for nonsuit, which was overruled. The defendant offered no evidence. The verdict was for plaintiff, and from the judgment entered thereon defendant appeals.

There are six exceptions, but in the opinion of this court the appeal is settled by the answer to the one question: Should the nonsuit have been granted on the ground that there is no proof of actionable negligence on the part of the defendant which brings the case within the provisions of section 7345 of the Code of 1932.

It is the established law of this state that a city, being an integral part of the sovereignty of the state, may not be sued in tort, except in such cases as the right of action is expressly given by statute, and in such cases as are protected by the provisions of article 1, § 17, of the Constitution to the effect that: "Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor." When a statute gives a right of action against the state, county, or city, or other subdivision of the sovereign authority, it is the rule of the law that such statute must be strictly construed. "This court has held that an *** act *** in derogation of the sovereign power of the state, must be strictly construed." Ancrum v. State Highway Department, 162 S.C. 507, 161 S.E. 98, 99.

One counsel in argument states that the action is brought under the provisions of Section 3475 of the Code of 1932; the other counsel states that it is brought under section 5856 of the new Code. We think both of them are in error. Section 3475 relates to the duty of coroners in certain contingencies; Section 5856 relates to actions against counties to recover damages for defects in highways, etc.; section 7345 relates to "Causes of Action for Damages from Defects in Streets, Mismanagement, Etc."

However, the text of section 7345 is correctly set out in the brief of respondent's counsel, and it is agreed that this action is laid under the provisions of that section, which are as follows:

"Any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under control of the corporation within the limits of any town or city, may recover, in an action against the same, the amount of actual damages sustained by him by reason thereof. [Irrelevant sentence omitted.] Provided, the said corporation shall not be liable unless such defect was occasioned by its neglect or mismanagement:

" Provided, further, Such person has not in any way brought about any such injury or damage by his *** own negligent act or negligently contributed thereto."

There are two lines of cases in the construction of this statute and the kindred one affecting counties. The one standing for a strict compliance with the provisions of the enabling statute, and the other for a more liberal interpretation and application. Apparently no effort has ever been made to reconcile these differences of opinion, and hence there are the two lines of apparently irreconcilable cases.

Which of them is founded in reason and is upheld by the authority of the statute?

The first authoritative interpretation of the statute which is applicable to this action was made by that great jurist Chief Justice McIver in the case of Dunn v. Barnwell, 43 S.C. 398, 21 S.E. 315, 316, 49 Am. St. Rep. 823.

Dunn brought action against the town of Barnwell to recover damages for injuries to his horse which caused its death. The complaint alleged that the town had permitted the erection of booths in a narrow and much used street; that the horse took fright at something displayed in a booth, ran against the shaft of a buggy which penetrated its body and caused its death.

Referring to the act which we are now considering, the opinion, after quoting the act, proceeds in this wise: "It is apparent from the title of this act, as well as from the terms used in the body of the act, that the sole purpose [italics ours] was to give a person who had sustained an injury by reason of a defect in a street [these italics are in the opinion] a right of action to recover damages for such injury. The title of the act is as follows: 'An act providing for a right of action against a municipal corporation for damage sustained by reason of defects in the repair of streets, sidewalks and bridges within the limits of said municipal corporation.' And it is manifest that the purpose thus declared in the title was adhered to in the body of the act; especially from the language used in the proviso above set out, where it is declared that the corporation should not be liable ' unless said defect was occasioned by its neglect or mismanagement,' indicating very clearly that the term 'mismanagement,' as used in a previous part of the act, meant mismanagement in making repairs on the streets, so that the corporation should be held liable, not only for neglect in making the repairs on the street, but also for mismanagement of anything under the control of the corporation in making such repairs."

The last four words just above quoted were emphasized in the opinion; we have added the other emphasis. We quote further from the same opinion this: "This does not give the plaintiff any cause of action, either under the statute or at common law, as has been held by this court in several cases, when called upon to construe a previous statute of similar tenor, so far as the present question is concerned, though differing in some other respects not pertinent to the present inquiry. See what is said in Acker v. Anderson County, 20 S.C. 495 at page 498, where, though the point was not decided, because not necessary to that case, yet a very strong intimation was thrown out in favor of our view. See, also, Brown v. Laurens County, 38 S.C. 282, 17 S.E. 21, and Mason v. Spartanburg County, 40 S.C. 390, 19 S.E. 15 ."

In Acker v. Anderson County, the action was based upon the allegation that plaintiff's horse took fright at an advertisement in large black letters posted on the bridge plaintiff was crossing. The action was under the statute of 1874, giving a right of action against counties, now embodied in Code of 1932 as section 5856. The opinion of the court was by Mr. Justice McGowan, inter alia he said: "The only matter for which the act gives an action against the county is 'a defect in the repair of a highway, causeway or bridge."'

In Brown v. Laurens County, 38 S.C. 282, 17 S.E. 21 the allegations are that, while plaintiff was on a bridge, in a buggy, the horse took fright at a piece of timber, lying near for the repair of the bridge, and backed the buggy off the bridge at a point where there was no railing; a nonsuit was granted on circuit. Delivering the opinion of the Supreme Court, sustaining the order of nonsuit, Mr. Justice McGowan said: "There was no allegation of any 'defect in the repair of the...