United States Casualty Co. v. State Highway Department

The opinion of the Court was delivered by Mr. Justice BlEASE. *79 The respondent, a foreign surety company, doing business in the State, sued the appellant, State Highway Department, in the Court of Common Pleas of Williamsburg County. The cause of action was based upon allegations to the effect that certain damages were sustained by an automobile of William Foor, on account of defects in a state highway controlled, managed, maintained, and supervised by the appellant; the suit being instituted under the provisions of Act No. 189 of the General Assembly of the year 1925 entitled, “An Act to Amend Section 2948 of the Civil Code of Laws, Volume 3, Relating to Damages From Defective Highways, so as to further provide for the payment of damage or injury sustained upon the highways of the State.” (34 Stats. 287). That Act was approved April 14, 1925. Respondent’s suit was instituted a few days after the passage of Act No. 1055, of the year 1928, approved March 10, 1928, entitled, “An Act to Permit the State Highway Department to' be sued and naming the conditions under which suit may be instituted, and providing for compromise or settlement in certain cases.” 35 Stats. 2055. The respondent alleged settlement with Foor under the terms of a policy of insurance he carried with the respondent, and the suit against the appellant was sought to be maintained upon the principle that the respondent was subrogated to the rights of Foor against the appellant. The appellant interposed a demurrer to the complaint on the following grounds: “First: That the State Highway Department of South Carolina is an agency of the State Government and a suit against such Department is, in effect, a suit against the State in its sovereign capacity, and no action can be maintained against the State or one of its departments or governmental agencies without express legislative sanction therefor in conformity with the Constitution of the State, and this Court is without jurisdiction to hear and determine the alleged *80 cause of action stated in the complaint for the reason that there is no statute authorizing a suit against this Department, or creating any liability or cause of action against this Department for the acts alleged in the complaint. “Second-' That the statutory law of this State does not create any actionable liability on the part of the State Highway Department of South Carolina for the acts and conduct complained of in the complaint. “Third: That the complaint does not show that a verified claim, giving the date, place where the injury or damage occurred and the amount claimed, has been filed with the State Highway Department as required by law. “Fourth: That it appears upon the face of the complaint that the damage complained of was not due to any defect in any State Highway, or by reason of the negligent repair of any State Highway, or by reason of the negligent operation of any vehicle or motor vehicle in charge of the State Highway Department while said vehicle or motor vehicle was actually engaged in the construction or repair of any of the State highways, but that the damage complained of was sustained by reason of a contract of insurance voluntarily entered into by the plaintiff with a third party, to which the defendant was not a party and with which it was .in nowise connected. “Fifth: That the complaint fails to allege that the injury was not caused by the negligence of the plaintiff, or of the •driver of the automobile, and does not allege that neither the plaintiff nor the driver of the automobile did not negligently contribute thereto.” The demurrer was heard by his Honor, circuit Judge Shipp, who overruled all the grounds thereof, except the fifth. He sustained the fifth ground, but allowed the respondent the right to serve an amended complaint so as to cure the defects set out in that ground of the demurrer. From the order of Judge Shipp-, the appellant, State High!way Department, has appealed to this Court. Its exceptions *81 properly set up the contentions that the first, second, third, and fourth grounds of the demurrer should have been sustained and the complaint dismissed. The suit here, while against a department of the State Government, is actually one against the State itself. 36 Cyc., 915 ; Monarch Mills v. South Carolina Tax Commission, 149 S. C., 219, 146 S. E., 870. Though the injury to the property, alleged to have been sustained, occurred while the Act of 1925, supra, was of force, it is clear to us, under the authorities, that the respondent, if it had any right to recover at all, could only proceed under the Act of 1928, supra, as that enactment superseded the Act of 1925, and became effective prior to the commencement of this suit. The Act of 1928 contains a provision that “All Acts or parts of Acts inconsistent with this Act are hereby repealed.” “The consent of a State to be sued, being voluntary, may be withdrawn or modified by the State whenever it sees ft, even though pending suits may be thereby defeated; and upon the repeal of the statute authorizing the suit, the Court in which the suit is pending can proceed no further therein.” 36 Cyc., 915; Cope v. Hampton County, 42 S. C., 17, 19 S. E., 1018. (Italics added.) The Act of 1928 also contains the following provisions: “That a claim giving the date, place where the injury or damage occurred, and the amount claimed must be made out, sworn to, and filed with the State Highway Department within ninety days after the alleged injury or damage. Suit, if any, must be commenced by the service of a summons and complaint, within six months from the date of the injury or1 damage: Provided, That the time limits imposed by this Section for giving notice and commencing suit shall not apply in cases of injuries or damages already sustained or claims already filed with the State Highway Department which may be compromised or settled under the provisions of Section 1 hereof.” (Italics added.) *82 Our construction of the quoted language is that, while the time limit of ninety days for the filing of the required claim with the State Highway Department did not apply to the claim of the respondent in this case, since the injury and damage alleged to have been sustained by it occurred prior to the passage of the Act of March 10, 1928, still the respondent should have filed the proper claim with the State Highway Department before it had the right to enter the suit. It is to be noted that “the time limits imposed” were not made applicable to those cases where injuries or damages had been sustained prior to the enactment of that law, but the requirement that the claim should nevertheless be filed with the State Highway Department before the commencement of suit is positive. In other words, as to injuries suffered before the passage of the Act, there was a waiver by the State as tQ the time for the filing of claims, but there was no waiver of the requirement that claims as to such injuries should be filed. The complaint in this case did not show that the claim required by the statute was filed with the State Highway Department, as required by the Act from which we have quoted, and, for that reason, the third ground of the demurrer should have been sustained. It is our opinion, also, that the other grounds of demurrer, which were overruled by the presiding Judge, should have been sustained. In support of our view, we call attention to the following authorities: “It is well settled that a State cannot be sued in its own courts, or in any other, unless it has expressly consented to such suit, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United' States, by virtue of the original jurisdiction conferred on such court by the constitution.” (Italics added.) 25 R. C. L., 412. “The consent of the State to be sued is entirely voluntarily on its part, and it may therefore prescribe the cases in which *83 and the terms and conditions upon which it may be sued, and how the suit shall be conducted; and the State can be sued only in cases, manner, place, and courts prescribed by it, and one who seeks to avail himself of such consent must pursue the remedy as it is provided by law, and must fully comply with the prescribed terms and conditions, and it is the duty of the courts to see that the prescribed methods of procedure are followed.” (Italics added.) 36 Cyc., 913. “That a State cannot be sued in any of its Courts without its express consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary.” (Italics added.) Lowry v. Thompson, 25 S. C., 416, 1 S. E., 141, 143. “The consent of the State to be sued must be given in express terms or at least in terms so clear and unambiguous as necessarily to imply consent-, and it has been held that statutes authorizing suits against a state, being in derogation of its sovereignty, should be construed strictly, although not so strictly as to exclude a case clearly ■ coming within their terms, for the construction should be such as to carry out the legislative intent.” (Italics added.) 36 Cyc., 913. The case of Monarch Mills v. South Carolina Tax Commission, supra, also has some bearing here. In that case, it was admitted that a taxpayer was entitled to certain refunds on taxes collected from it by the State Tax Commission, and the refunds were made, but the Tax Commission declined to pay interest on the money which it had erroneously collected. We sustained the commission, deciding that the interest could not be collected without specific statutory authority therefor. Our Court has followed the rule that statutes permitting suits against a state, and especially those statutes allowing suits against towns, cities, and counties, political subdivisions of the State, for damages to property and persons, occurring *84 through defects in streets and -highways, should be construed strictly. In All v. Barnwell County, 29 S. C., 161, 7 S. E., 58, the Statute providing for suits against counties for damages occasioned through defective highways, then Section 1087 of the General Statutes, now Section 2948 of Volume 3 of the Code of 1922, was under consideration. It was held that the action for the benefit of the widow and children of the person alleged to have been killed on account of a defective highway could not be maintained because the Statute at that time did not give the right of an action of that kind. In Chick v. Newberry and Union Counties, 27 S. C., 419, 3 S. E., 787, that same Statute was also- strictly construed, and it was held that a flatboat at a ferry, maintained by two counties, was not a part of the public highway as the word “highway” was used in the Statute. The Act of 1925, supra, by the terms of which the respondent sought to- b-ring this suit, also has been strictly construed. See Randal v. State Highway Department, 150 S. C., 302, 148 S. E., 57. The very clear and interesting order of Circuit Judge Johnson in that case, sustaining a demurrer to the complaint, was approved by this Court. It was held that under the Act no- -liability was - imposed on the State Highway Department for the death of a laborer killed while doing repair work on a highway, since the liability created by the Act was restricted to injury or damage to person or property. It was also decided in that case that the State Highway Department was not liable for the death of one of its employees because of its failure to furnish such employee a reasonably safe place in which to work; there being no statute creating such liability. Our cases have also- construed the Statute relating to actions against municipal corporations for damages occasioned by defects in streets (Section 4478, Volume 3, Code of 1922) in a very strict manner. See Stewart v. City Council *85 of Charleston, 134 S. C., 398, 132 S. E., 678, where Mr. Justice Stabler reviewed several of the previous decisions. Counsel for the respondent, in his brief but very clear argument, cites several cases supporting the principle that an insurance company is subrogated to the rights of its insured against the party who occasions the loss. That principle is generally recognized in transactions between individuals. But it is not applicable here. So far as we are able to discover, none of the cited cases touch the questions at issue in this cause, for in none of them was a State, or one of its political subdivisions, a party to the litigation. The Statute of 1928, as well as that of 1925, is one in derogation of the sovereign power of the state. Following the general tendency of our own decisions, it our duty to construe those acts so as to uphold the power of the state to refuse to be sued by a citizen in its own Courts, except in those instances where the state has expressly consented to be sued. It is the duty of one seeking to1 sue the state to show that the state has given the necessary consent. We have examined carefully both the Acts referred to, and we find no language therein which we are able to so construe as to give the respondent the right tO' bring this action. In the very beginning of the Act of 1928 we find these words: “Any person, firm or corporation who may suffer injury to his or her person or damage to‘ his, her or its property by reason of a defect in any State Highway, or by reason of the negligent repair of any State Highway, or by reason of the negligent operation of any vehicle or motor vehicle in charge of the State Highway Department while said vehicle or motor vehicle is actually engaged in the construction or repair of any of the said highways, may bring suit against the State Highway Department. * * *” The right to sue the State Highway Department, permitted by the Statute, is clearly limited to “Any person, firm or corporation who may suffer injury to his or her person or damage to his, her or its property.” The Statute does not *86 provide that an assignee of a person who has suffered damage to his property may sue the highway department. Neither is a there a provision which permits a subrogated party to enter suit for damage occasioned to the property of the person from whom the right of subrogation comes. The property alleged in the respondent’s complaint to have been damaged was the property of William Foor. The complaint did not allege damage to- any property of the respondent. It is the-judgment of this Court-that all the grounds of the demurrer interposed by the appellant be, and the same are hereby, sustained, the order of the circuit Judge be reversed, and the complaint of the respondent be dismissed. Mr. Chiee Justice Watts and Messrs. Justices Stabler and Carter concur.