Mullinax v. Hambright , 115 S.C. 22 ( 1920 )

October 11, 1920. The opinion of the Court was delivered by The complaint shows upon its face that the Cherokee County Highway Commission is a governmental agency. And the general proposition that a governmental agency is not subject to an action for tort is sustained by the following authorities: Young v. City Councilof Charleston, 20 S.C. 116, 47 Am. Rep. 827; Triplettv. City of Columbia, 111 S.C. 7, 96 S.E. 675, 1 A.L.R. 349.

The appellant's attorneys contend, however, that this principle is not applicable, for the reason that the action allowed by section 3955, Code of Laws 1912, is a property right and an asset of the estate, and that the denial of the right to recover damages in this action is, in effect, the taking of property without just compensation, in violation of the Federal and State Constitutions. That section is as follows: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured."

The appellant's attorneys rely upon the case of In reEstate of Mayo, 60 S.C. 401, 38 S.E. 634, 54 L.R.A. 660, to sustain the proposition that the rights involved pertain to property; and upon the case of Hopkins v. ClemsonAgricultural College, 221 U.S. 636, 31 Sup. Ct. 654, 55 L. Ed. 890, 35 L.R.A. (N.S.) 243, for the purpose of showing that the denial of the right of action is, in effect, a taking of property without just compensation. This Court, in the case of Irvine v. Town of Greenwood, 89 S.C. 511,72 S.E. 228, 36 L.R.A. (N.S.) 363 (in which the action was for damages arising out of negligence on the part of the municipality, and failure to keep a street in proper repair, whereby a boy was killed), thus comments upon the last mentioned case:

"In Hopkins v. Clemson College, 77 S.C. 12,57 S.E. 853, the question was whether Clemson College, a corporation created for a public purpose, was liable for overflowing plaintiff's land in constructing a dike to protect the crops on the college lands from the floods in the Seneca River. This Court held that the case fell within the rule laid down in Gibbes v. Beaufort, 20 S.C. 213; Dunn v. Barnwell,43 S.C. 398; 21 S.E. 315, and the other cases decided in this State cited above, and that, therefore, the plaintiff could not recover. On appeal the Supreme Court of the United States reversed the judgment of this Court holding that the flooding of plaintiff's land was the taking of private property without due process of law, and that the taking was by the corporation itself for corporate purposes and not by its officers or agents. As we understand, it was on these grounds that the case was distinguished from Gibbes v.Beaufort, supra, and other like cases decided in this State. The doctrine of the decision, however, is not applicable to this case, for the reason that here there is no taking of private property by the corporation, but an injury resulting in death from the alleged failure of an employee of the municipality to perform the duties imposed on him by the municipality.

The case from which we quote shows that the case upon which the appellant relies is not applicable.

There is another reason why the demurrer was properly sustained. If death had not ensued, the cases cited inYoung v. City Council of Charleston, supra (Irvine v. Townof Greenwood, supra, and Triplett v. City of Columbia,supra) show beyond question that plaintiff's intestate could not have maintained an action for damages against the defendant as it is a governmental agency. Section 3955 contains the provision that the act, neglect, or default must be such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. It, therefore, necessarily follows that, as the action could not have been maintained against the defendant by plaintiff's intestate, it cannot be maintained by the plaintiff.

These conclusions dispose of the first and second exceptions.

The third exception cannot be sustained, as the ruling was not prejudicial to the rights of appellant.

Affirmed.