Supreme Court of South Carolina, 1933

Chewning v. Clarendon County

Supreme Court of South Carolina · Decided January 26, 1933 · Carter, Chiee, Ci-Iiee, Brease, Stabrer, Cothran, Bonham

167 S.E. 555; 168 S.C. 351; 1933 S.C. LEXIS 17 (South Eastern Reporter)

Counsel

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 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Carter.

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 pur *354 pose 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. Ci-iiee Justice Brease and Mr. Justice StabrEr and Mr. Acting Associate Justice W. C. Cothran concur. Mr. Justice Bonham disqualified.

Concurring Opinion

Mr. ChiEE Justice Brease

(concurring) : For the information of the bench and bar, attention is called to the fact *355 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. * * * ”

Case-law data current through December 31, 2025. Source: CourtListener bulk data.