Opinion
20359
February 8, 1977.
Messrs. Daniel R. McLeod, Atty. Gen., Victor S. Evans, Dep. Atty. Gen., of Columbia and T. Sam Means, Jr., of Spartanburg, for Appellant, cite: As to the complaint not alleging the filing of a written notice with the State Highway Department and not being brought within the three way Department and not being brought within the three month's period following the injury: Section 10-2623 of the South Carolina Code of Laws, as amended; 264 S.C. 221, 213 S.E.2d 740; "South Carolina Governmental Motor Vehicle Tort Claims Act" (1968 (55) 3027); 264 S.C. 369, 215 S.E.2d 430; 264 S.C. 386, 215 S.E.2d 438; 165 S.C. 180, 163 S.E. 473; 162 S.C. 504, 161 S.E. 98; 156 S.C. 232, 153 S.E. 165; 207 S.C. 112, 34 S.E.2d 484; 199 S.C. 85, 18 S.E.2d 611; 264 S.C. 386, 215 S.E.2d 438; 242 S.C. 382, 131 S.E.2d 153; Section 33-921, et seq. of the S.C. Code; 155 S.C. 77, 151 S.E. 887; 242 S.C. 382, 131 S.E.2d 153. As to the County Court Judge's having failed to honor the precept that statutes permitting suit against a political subdivision of State, being in derogation of its sovereignty, must be strictly construed: 264 S.C. 221, 213 S.E.2d 740; 242 S.C. 382, 131 S.E.2d 153; 238 S.C. 580, 121 S.E.2d 221; 217 S.C. 423, 60 S.E.2d 859; 183 S.C. 98, 190 S.E. 239; 192 S.C. 216, 6 S.E.2d 265; 227 S.C. 200, 87 S.E.2d 486. As to the excuse that the Plaintiff was erroneously proceeding under Section 33-229 of the Code not being the "reasonable excuse" contemplated by Section 10-2623 (a) of the Code: 42 C.J.S., page 380; 105 N.W. 293, 295, 74 Neb. 749; 115 S.C. 10, 104 S.E. 325; 7 Pet. U.S. 404, 8 L.Ed. 728; 33 F. Supp. 3; 235 S.C. 239, 111 S.E.2d 13; 221 S.C. 141, 69 S.E.2d 585; 220 S.C. 79, 66 S.E.2d 461; 210 S.C. 1, 41 S.E.2d 372; 162 S.C. 44, 160 S.E. 135; 240 S.C. 203, 125 S.E.2d 353; 258 S.C. 500, 189 S.E.2d 291; 253 S.C. 147, 169 S.E.2d 387; 231 S.C. 545, 99 S.E.2d 391; 229 S.C. 44, 91 S.E.2d 723; 254 S.C. 161, 174 S.E.2d 163; 243 S.C. 565, 135 S.E.2d 94; 200 Ga. 651, 38 S.E.2d 171. As to the County Court Judge's having erred in observing and holding that a complaint can be amended in order to state a cause of action after the statute of limitations has run: 199 S.C. 85, 18 S.E.2d 611; 161 S.C. 21, 159 S.E. 457; 32 S.C. 142, 10 S.E. 932; 215 S.C. 256, 54 S.E.2d 806; 254 S.C. 128, 174 S.E.2d 155. As to the complaint's being deficient since it fails to allege the claimed acts of negligence of the Defendant were the direct and proximate cause of Plaintiff's damage and injury: 243 S.C. 248, 133 S.E.2d 757; 217 S.C. 212, 60 S.E.2d 305; 157 S.C. 359, 154 S.E. 645.
C. Kennon Robertson, Esq., of Spartanburg, for Respondent, cites: As to a complaint against the State Highway Department for the negligent operation of a motor vehicle stating a cause of action under Section 10-2623 of the Code although the complaint does not allege the filing of the required written notice with the Department within three months and is not brought within the three months' period: 219 S.C. 231, 64 S.E.2d 641; 222 S.C. 326, 72 S.E.2d 647. As to the County Court Judge's order overruling the demurrer following a strict construction of the statute allowing suit against the State Highway Department: 231 S.C. 545, 99 S.E.2d 391; 38 S.C. 556, 17 S.E.2d 1; 230 S.C. 288, 95 S.E.2d 482; 108 S.C. 49, 93 S.E. 243; 107 S.C. 393, 93 S.E. 141; 60 S.C. 135, 38 S.E. 269; 232 S.C. 185, 101 S.E.2d 494. As to the County Judge's not having been in error in holding that the Plaintiff could amend his complaint including compliance with Section 10-2623 after the Statute of Limitations had run: 80 S.C. 213, 61 S.E.2d 296; 179 S.C. 329, 184 S.E. 92; 243 S.C. 565, 135 S.E.2d 94; 306 Mich. 617, 194 N.W.2d 700; 226 S.C. 257, 84 S.E.2d 857; 45 A.L.R.2d 1070; 193 S.C. 51, 7 S.E.2d 641; 127 A.L.R. 1185; 224 S.C. 437, 79 S.E.2d 710; 109 U.S. 550, 27 L.Ed. 1028, 3 Sp. Ct. 239; 240 S.C. 203, 125 S.E.2d 353; 230 S.C. 288, 95 S.E.2d 482.
February 8, 1977.
This is an action by respondent Crocker for personal injury and property damage. Appellant State Highway Department demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action — specifically, that Crocker did not bring suit within three months of the date of injury and did not allege in his complaint that he had given written notice to the appellant within that time. The Department said that one of these, a timely written notice or timely commencement of suit, was required by Section 10-2623, South Carolina Code (Cum. Supp. 1975), the statute authorizing Crocker's action. The lower court overruled the demurrer. At issue is whether Crocker complied with the section and if not, whether he could have amended his complaint to comply. We find the lower court erred on both points and reverse.
Crocker was injured in a March 1974 accident with a State Highway Department vehicle. In January 1975 he sued, alleging in his complaint that his action was brought pursuant to § 33-229 of the Code and that he had "fully complied with the requirements of such section."
Actually, a suit against the State Highway Department for personal injury and property damage due to the negligent operation of a vehicle had been, since 1968, authorized only by § 10-2623 of the South Carolina Code (Cum. Supp. 1975) (that section is part of the South Carolina Governmental Motor Vehicle Tort Claims Act). The trial judge found naming the wrong statute was "reasonable excuse" (the language is taken from § 10-2623) for not complying with § 10-2623. He held the misnomer could be corrected by amending the complaint.
However, the two year statute of limitations contained in § 10-2623 had run at the time of the lower court's order. After the statute has run, the complaint can not be amended to state a cause of action. Ouzts v. State Highway Department, 161 S.C. 21, 159 S.E. 457 (1931); see also Kennemore v. S.C. State Highway Department, 199 S.C. 85, 18 S.E.2d 611 (1942).
Secondly, even if amendable, the complaint was defective not only by naming the wrong section, but also by not complying with the section it alleged it was brought under and related sections (§ 33-229 et seq., S.C. Code, 1962). The complaint was not brought within six months of the date of injury and it did not allege the filing of a claim within that time (§ 33-230); nor did the complaint plead absence of contributory negligence (§ 33-232).
And, of course, Crocker did not comply with the applicable section (§ 10-2623). He failed to either allege in his complaint that he had given timely written notice to appellant, or alternatively, to bring suit within the time prescribed by the section.
For the above reasons, the order of the lower court is
Reversed.
LEWIS, C.J., and LITTLEJOHN, NESS and RHODES, JJ., concur.