Robinson v. Minnehaha County, 8036

• Decision Date: 25 January 1938
• Docket Number: 8036
• Citation: 65 S.D. 628,277 N.W. 324
• Parties: WILL G. ROBINSON, Appellant, v. MINNEHAHA COUNTY, Respondent.
• Court: South Dakota Supreme Court

65 S.D. 628

277 N.W. 324

WILL G. ROBINSON, Appellant,

v.

MINNEHAHA COUNTY, Respondent. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Lucius J. Wall, Judge. #8036—Affirmed. Will G. Robinson, Pierre, SD Harry A. Robinson, Yankton, SD Attorneys for Appellant. E. D. Barron, State’s Atty., Sioux Falls, SD CJ Delbridge, Louis Crill, John McQuillen, Sioux Falls, SD Attorneys for Respondent. Opinion filed Jan 25, 1938

SMITH, J.

On the night of August 31, 1933, a large tree located within the confines of a state trunk highway in Minnehaha County fell across the highway and injured the wife of plaintiff. The tree had become weakened by decay, and was precipitated onto the passageway by a high wind. As a result of the injuries suffered by his wife, appellant was required to expend, or obligate himself to expend, a considerable sum of money. After his claim against Minnehaha county had been rejected, this action was brought by appellant for the purpose of establishing the liability of the county for such expenditures. A verdict was directed by the learned trial court for the county, at the close of the testimony. The appeal is from the judgment and from an order overruling the motion for a new trial.

Assuming that the evidence discloses that Minnehaha County had actual notice of the defective condition of the tree and had ample opportunity to remove it from the highway, if it was obligated so to do, is the county liable for the damages appellant suffered as a result of the injury? That there is no common-law liability upon the part of the county for such damages has been settled by former adjudications of this court. Bailey v. Lawrence County, 49 AmStRep 881; Brown v. Roberts County, 206 N.W. 479; Hanigan v. Minnehaha county et al., 201 N.W. 522; Cain v. Meade County, 735.

Notwithstanding the fact that the statutory duty to maintain and repair the highway in question rested with the State Highway Commission by the terms of chapter 285 of the Laws of 1923, it is asserted by appellant that county liability arises out of the provisions of sections 8589 and 8590 of the Revised Code of 1919, as amended by chapter 167 of the Session Laws of 1931, reading as follows:

“Section 8589. Guards Erected-Repairs. It shall be the duty of the governing body of every city, incorporated town and of the board of county commissioners in the territory not included in any such city or town, to keep the public highways, culverts and bridges in such condition as to render them safe, passable and free from danger of accident or injury to persons or property while in the lawful use thereof, and in case any highway, culvert or bridge shall become, in whole or in part, destroyed or out of repair by reason of floods, fires or other cause to such extent as to endanger the safety of the public, it shall be the duty of such governing body or board, upon receiving notice thereof, to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defect or across such highway of sufficient height, width and strength to warn and guard the public from accident or injury, and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert or ‘bridge as provided in this article.”

“Section 8590. Violation-Penalty-Damages, Any officer who shall violate the provisions of the preceding section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than ten nor more than fifty dollars or by imprisonment in the county jail not less than five nor more than ten days, or by both such fine and imprisonment; and any person who shall sustain injury to person or property by reason of any violation of such section shall have a cause of action against the city, town, or county, as the case may be.” Authority has taken the position that such statutes deal only with the surface of the passageway, and, being in derogation of the common law, may not be extended by judicial construction to impose liability for falling trees or branches. Miller v. City of Detroit, 156 Mich. 630, 132 AmStRep 537, 16 Ann. Cas. 832. The views we hold render it unnecessary for us to labor the point. For like reasons we do not consider whether a cause of action accrues to a husband for expenditures growing out of an injury to his wife under the language of these provisions, reading as follows: “And any person who shall sustain injury to person or property.”

An understanding of legislative intent will be gained through consideration of the original form of these statutes and by an explanation of the state of our highway law at the time of their enactment. Under the statutes as they then existed, the duty to maintain and repair the highways rested upon cities, towns, and organized civil townships, respectively, as to all highways located within their confines, and upon the counties as to all highways located in territories not fully organized into civil townships. In the light of this segregation of duty, the Legislature adopted chapter 210 of the Session Laws of 1915 (the source of sections 8589 and 8590, Revised Code of 1919), reading as follows:

Ҥ 1. Guards Erected-Repairs Made. It shall be the duty of the road supervisors of any township, town or city, and the county commissioners of any county not fully organized into civil townships, to keep all public roads and highways, culverts and bridges in such condition as to render them safe and passable and free from danger of accidents or injury to persons or property, while in the lawful use thereof, and in case such roads, highways, culverts or bridges shall become in whole or in part destroyed or out of repair by reason of floods, fires or any other cause, to such an extent as to endanger the safety of public travel, it shall be their duty upon receiving notice thereof to cause to be erected, for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defects, or across such roads or highways, of sufficient height, width and strength to warn and guard the public from accident or injury to the person or property thereof, and it shall also be their duty to repair the same within reasonable time thereafter. It shall also be the duty of any such supervisors to protect any abandoned public road or highway with substantial guards as provided in this act.

Ҥ 2. Penalty. Any such officer or officers, who shall violate the provisions of this act shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than ten ($10.00) dollars, nor more than fifty ($50.00) dollars, or by imprisonment in the county jail for a term of not less than five (5) days, nor more than ten (10) days, or both such fine and imprisonment.

“§ 3. Damages. Any person shall have a cause of action against such city, town, township or county for injury to persons or property sustained by reason of any violation of the provisions of this act.”

From these provisions there emerges an unmistakable legislative intent to definitely fix the respective duties of the several subdivisions enumerated with reference to public safety and travel on the highways, and to provide for the recovery of damages from a particular subdivision occasioning injury through failure to perform the statutory duty assigned to it. Manifestly, liability was only intended to attach to a subdivision because of its negligence.

That such was the legislative intent portrayed by these provisions was recognized by this court in the case of Hanigan v. Minnehaha County, supra. In that case damages were sought against a township, under sections 85'89 and 8590 of the Revised Code of 1919, for injuries sustained on the county highway system within the township at a time after the Legislature, by chapter 333 of the Laws of 1919, had relieved the townships of all responsibility for the maintenance and repair of those particular highways. In that case it was said: “A civil township no longer has any power or duty in respect to the construction or maintenance of any part of the county highway system within its borders, and section 29 of said chapter 333 purports to place upon the county board the duty of constructing and maintaining all bridges in the county except those on the state trunk highway system. It is therefore perfectly clear that said section 8590 no longer has any application to townships in respect to an injury arising from...