Opinion
13563
January 26, 1933.
Before BONHAM, J., Clarendon, March, 1929. Affirmed.
Action by Marian Louise Chewning, as administratrix of the estate of J.H. Chewning, deceased, against Clarendon County. From an order sustaining a demurrer to the complaint and a final judgment entered thereon dismissing the action, plaintiff appeals.
The order of his Honor, Judge Bonham, directed to be reported, is as follows:
This is an action against the county for damages for the pain and suffering of plaintiff's intestate, who was fatally injured on highway bridge of the defendant.
On proper notice, I heard arguments upon a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, in that:
First. That it appears upon the face of the complaint that it is attempted to set up a cause of action for damages for pain and suffering accruing to the intestate and surviving to his personal representatives by the terms of the "Survival Statute" (Section 375, Code of Civil Procedure 1922), whereas there is no provision in law for such an action against the defendant, a county of this State.
Second. That, if such a cause of action as is referred to in the first ground above, and attempted to be set up in the complaint, exists, it is in favor of plaintiff as administratrix of the personal estate of the deceased and not in her representative capacity for the benefit of herself and children, as is alleged in the complaint, and in whose behalf she purports to bring this action.
Upon the first ground I think that the demurrer should be sustained, and I so hold. No action lies against a county in tort unless expressly permitted by statute. Section 2950 of the Civil Code of 1922 fixes the rights of the parties in the case of the resulting death of one injured by defects in a county highway or bridge and gives a right of action against the county, under Lord Campbell's Act. This remedy the plaintiff appears to have pursued to judgment; the statute provides no other; and an examination of its origin shows that it was not intended by the Legislature to create the right of action here attempted.
The statement to the contrary in the opinion in the case of McLendon v. Columbia, 101 S.C. 48, 85 S.E., 234, 5 A.L.R., 990, appears to be obiter dictum. However, it was decided under a statute very different from the present Section 2950, now the only statutory law upon the subject, as is pointed out in Randal v. State Highway Department, 150 S.C. 302, 148 S.E., 57, and is therefore not controlling.
With respect to the second ground of the demurrer, I think that the plaintiff has properly stated a survival action, if such were permitted by statute against a county, and I overrule this ground.
It is therefore ordered and adjudged that the complaint in this action be, and it hereby is, dismissed, with costs to the defendant.
Messrs. Epps Levy and J.W. Wideman, for appellant, cite: As to Lord Campbell's Act: 29 S.C. 161; 97 S.E., 27. As to survival statute: 101 S.C. 48. Personal injury arising from defect in roads action against Highway Department allowed: 142 S.C. 202; 150 S.C. 302.
Messrs. Dinkins Stukes, for respondent, cite: County can be sued for action in tort only where expressly provided by statute: Sec. 2948, Civil Code 1922; 27 S.C. 421; 134 S.C. 398; 132 S.E., 678; 29 S.C. 161; 7 S.E., 58; 96 S.C. 313; 80 S.E., 599.
January 26, 1933. The opinion of the Court was delivered by
This action, instituted in the Court of Common Pleas for Clarendon County, March 29, 1929, is a suit by Marian Louise Chewning, as administratrix of the estate of J.H. Chewning, deceased, against Clarendon County, for the purpose of recovering judgment against the said county, in the sum of $15,000.00, for the pain, suffering, and personal injury sustained by the said deceased from an accident, from the time of said accident until the time of his death, which accident occurred June 20, 1928, while the deceased, an employee of said county, was operating a tractor belonging to said county, for the purpose of plowing up a public roadway under repairs, when the bridge on which the tractor was crossing a creek broke in, and as a result the said deceased was injured, and from which injury he died two days later. The said Marian Louise Chewning, as administratrix of the estate of the said deceased, also instituted a suit against the said county, on account of the death of the said deceased, and a verdict was recovered in favor of the plaintiff against the defendant, and, from the entry of judgment thereon, the defendant appealed to this Court, which judgment was affirmed; the same being reported in 163 S.C. 506, 161 S.E., 777.
The present action, based, as stated, upon the "pain, suffering and personal injury sustained by the deceased from the time of the accident until his death," comes before this Court on appeal from an order of his Honor, Judge M.L. Bonham, who is now an esteemed member of this Court, sustaining a demurrer to the complaint filed by the defendant.
The grounds of the demurrer and the reasons for sustaining the same are sufficiently stated in the order issued by his Honor, Judge Bonham. In our opinion, his Honor made a proper disposition of the case. The exceptions are therefore overruled, and the order appealed from affirmed.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.
MR. JUSTICE BONHAM disqualified.
For the information of the bench and bar, attention is called to the fact that the question raised and decided in this appeal cannot likely again arise under the existing law. By the Act approved April 5, 1930 (36 Stats., 1352, Section 5859, Code of 1932), the General Assembly expressly provided, "There shall be only one action against a county in the case of death which shall include damages for death and pain and suffering. * * *"