All v. County of Barnwell

The opinion of the court was delivered by Mr. Chiee Justice Simpson. The single question in this case is, whether an action for damages will lie against a county in this State, under section 2183, General Statutes, by the administrator of a. deceased party, who lost his life through a defect in a bridge under the control of the county commissioners, negligence being alleged in the complaint. It is conceded that previous to the act of 1874, now section 1087, General Statutes, no such action could be maintained against a county, in fact no action for damages, for negligence, or otherwise, alleged to be the result of failure to repair highways, bridges, &c., inasmuch as counties and other municipal corporations, being governmental agencies, were not liable at common lawr, and in the absence of special statutory enactment. The act of 1874, section 1087, General Statutes, however, gave a right of action “against a county for damages sustained by any one, through a defect in the repair of a highway or bridge, the damages to be fixed by a jury : provided, if such defect existed before such injury occurred, such damages should not be recovered by the person injured if his load exceeded the ordinary weight.” No doubt, had the deceased not been killed, he could have successfully maintained an action for his alleged injuries received here, under this section. But having been killed, his right of action died with him at common law, under the general principle of the common law in all such cases, to wit, that personal ex delicto actions die with the person. [167] But, admitting this rule, it is yet contended that the action below was maintainable under section 2183 of General Statutes, the act generally known as Lord Campbell’s act. This act was passed in 1859, years before the act of 1874 (section 1087), supra. It is broad and general in its terms, and provides “that whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act 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, although the death shall have been caused under such circumstances as to make the killing in law a felony.” This act, as we have said above, was passed in this State years before the act of 1874 (section 1087, General Statutes); and while, in its broad and general terms, it gave a right of action to the representatives of deceased parties, killed by the wrongful act, neglect, or default of another, for the benefit of the surviving wife, husband, or children, sufficiently comprehensive to embrace all cases where, if death had not ensued, they would have been actionable at common law by the party injured; and while, in fact, it amended the common law, in so far as personal actions ex delicto dying with the person was involved, to the extent of allowing such actions to survive for the benefit of the surviving family, to the end of recovering damages proportioned to the injury sustained; yet certainly the general assembly could have had no express intention to embrace within its provisions cases arising under section 1087, General Statutes, which, as we have said, was passed long after section 2183, this being the act of 1859, and section 1087 that of 1874. But notwithstanding this, can section 2183, by the application of any proper rule of construction, be made to evolve an intent on the part of the general assembly, not only to amend the common law in the respect suggested, and in reference to common law actions, but also to embrace new rights to be subsequently created by statute, if any ? Certainly the general assembly might, if it had so desired, have incorporated in section 1087 in express [168] terms the provisions of Lord Campbell’s act (section 2183), but not having done so, is not that significant of the fact that there was no intention that it should apply ? In construing an act of the general assembly as to its application, the evil to be remedied is one of the main matters to be considered. The evil here at the passage of the act of 1859 (section 2183) was, that personal actions, ex delicto, at common law died' with the person. This was regarded as a great hardship on the surviving family, especially the widow and minor children, and so many disasters occurring upon railroads and other new agencies, touching the pecuniary interests and welfare of such survivors, it was thought wise in 1859 to enact here said Lord Campbell’s act, repealing and amending the common law, by giving a right of action in all common law cases of injury resulting from wrongful acts, neglect, or defaults, to the surviving family of a deceased, where, if he had lived, an action could have been maintained by him. But, as we have already said above, a county in this State could not, nor can it now, be sued at common law for such injuries. The right of action exists only in statute (section 1087), which, when strictly construed and by its own terms, extends only.to the party injured. In addition to this, section 1087 gives the right of action granted, upon a defect in the repair of the highways, bridge, &c., &c., whether said defect has been the result of a wrongful act, neglect, or default of the county commissioners or not; while section 2183 confines the right of action therein granted, to-injuries resulting from the wrongful acts, neglects, or defaults of the party causing the injury. So it is manifest that, at least in some cases, where the county would be liable under section 1087 to suit for defects, not resulting from wrongful acts or neglect, the right of action could not survive. The plaintiff has recognized this distinction and difficulty, and to meet it has alleged negligence. But the right of action given against the county by section 1087 is not based on negligence, it is given independent of negligence. It is based on a defect in the repair of a highwray, causeway, or bridge, and a consequent injury, and upon such injuries occurring on account of the defect, it attaches to the fact of the defect, regardless of the cause thereof. [169] The question of the party injured contributing to his injury is not involved here. It is true that section 1087 in its terms, giving, as it does, a right of action for injuries resulting from defects in a highway, whether said defects have been caused by the wrongful act or neglect of the county or not, embraces cases of defects caused by such wrongful act and neglect as well as those not so caused, but the negligence is not the gist of the action. The defect is the gist. Whereas the actions under section 2183, given to the survivors of deceased parties are based entirely upon the wrongful act, neglect, or default of the party causing the injury. And such actions will fail, unless the evidence shows the negligence alleged, negligence in such cases being the gist. It thus appears that the cause of action in the two classes of cases is entirely different, and therefore they cannot be properly construed as supplementing each other, but each must be confined to the class to which in its terms it is made applicable — section 1087- giving a statutory right of action in certain cases against a county to an injured party, where at common law he had no such right, and section 2183 extending a common law right of action, where it existed before, only on the party injured, to the survivors of said party in certain cases. We think the presiding judge was right in sustaining the demurrer. The action belo-w was brought under section 2183, for the benefit of the widow and family of the deceased. The complaint shows this, and we think his honor was right in not allowing an amendment, so as to raise the question whether an action could be maintained for general administration, as this would have changed, as his honor said, the whole scope and purpose of the action. It is the judgment of this court, that the judgment of the Circuit Court be affirmed.