Summary
In Braudie v. Richland County, 219 S.C. 130, 64 S.E.2d 248 (1951).... [t]he claimant did not file a verified claim but through her attorney appeared before the appropriate commission and wrote a letter to the county commission setting forth the details of her injury within two months of her injury.
Summary of this case from Vines v. Self Memorial HospitalOpinion
16481
March 20, 1951.
Mr. Frank A. Graham, Jr., of Columbia, for Appellant, cites: As to when a right of action is based entirely upon a special statute, the conditions upon which such right is conferred must be alleged in the complaint: 195 S.C. 35, 10 S.E.2d 625; 162 S.C. 504, 161 S.E. 98; 134 S.C. 114, 132 S.E. 63; 121 S.C. 110, 113 S.E. 367; 40 S.C. 342, 18 S.E. 936; 156 S.C. 232, 153 S.E. 165; 155 S.C. 219, 152 S.E. 429. As to rule that statutes, authorizing suits against the state or any political subdivision thereof, must be strictly construed: 155 S.C. 77, 151 S.E. 887, 890; 29 S.C. 161, 7 S.E. 58; 27 S.C. 419, 3 S.E. 787; 56 S.C. 173, 180, 34 S.E. 73, 76, 46 L.R.A. 517; 119 S.C. 319, 112 S.E. 55. As to the filing of a claim, as required by the amendment permitting a County to be sued, being material matter, and proof of its contents is subject to the best evidence rule: 162 S.C. 504, 161 S.E. 98.
Messrs. Baker Baker and F. Ehrlich Thomson, of Columbia, for Respondent, cite: As to the rationale of the rule concerning the filing of verified claims against a County: 207 S.C. 112, 34 S.E.2d 484. As to the real intent of the General Assembly prevailing over the literal import of words used in statutes: 210 S.C. 273, 48 S.E.2d 390.
Order of Judge Grimball follows:
This action is one for the recovery of damages for personal injuries alleged to have been suffered by the plaintiff on or about December 4, 1948, because of a defect in or negligent repair of a highway maintained and operated by Richland County, the defendant. The action was brought under Section 5856 of the Code, which imposes a liability for injuries upon counties for injuries sustained by reason of a defect in or negligent repairs of a highway.
This matter comes before the Court upon the defendant's demurrer to the amended complaint of the plaintiff. This is the second time that this action has been before the Court upon demurrer by the defendant. The defendant demurred to the original complaint upon the ground that the same did not set forth facts sufficient to set forth a cause of action, in that it failed to allege that the plaintiff filed a verified claim as required by the amendment to Section 5856, which will be hereinafter set out. The demurrer was sustained by order of the Hon. T.B. Greneker with leave to the "plaintiff to amend her complaint as she (might) be advised." Upon appeal to the Supreme Court the order of Judge Greneker was sustained. Braudie v. Richland County, 217 S.C. 57, 59 S.E.2d 548.
Thereafter the plaintiff amended her complaint by adding thereto two paragraphs, numbered 7 and 8, which read as follows:
"(7) That on or about the 15th day of January, 1949, the plaintiff, while still confined to the hospital, did appear, by one of her attorneys, before the County Supervisor and the County Board of Commissioners, at a formal meeting, and did present to the said Supervisor and the County Board of Commissioners, in detail, all the facts and circumstances giving rise to the plaintiff's cause of action, setting forth the date and the place the injury occurred, and an estimate of the damages sustained by the plaintiff, together with actual photographs showing the condition of the roadway and the scene of the accident, which photographs were retained by the Commission for further examination and study; that the plaintiff through one of her attorneys did then and there request that the County Supervisor and the Board of Commissioners make a further investigation into the claim of the said plaintiff, for the purposes of effecting a settlement thereof. That the said Supervisor and the County Board of Commissioners did take the matter under advisement and promised an immediate investigation to determine the extent of the County's liability.
"(8) That, in addition to appearing before the Supervisor and the County Board of Commissioners, as aforesaid, the plaintiff, through one of her attorneys, entered into certain conversation with the attorney for Richland County concerning the plaintiff's injury and the plaintiff's cause of action against the said Richland County; that upon the request of the County attorney, the plaintiff wrote a letter, dated the fourth day of February, 1949, to the said County attorney, setting forth in detal the time and place of the injury, an estimate of the damages sustained as a result of said injury, and enclosed with said letter a separate detailed statement made by the attending physician, of the extent of plaintiff's injury; that upon information and belief the defendant, its agents or servants, in response to the information furnished it by the plaintiff, and acting upon said information, did, during the month of February, 1949, make a full and complete investigation of the plaintiff's claim and injury, in order to determine the extent of its liability therefor."
As previously stated, the defendant demurred to the amended complaint upon substantially the same ground that it had demurred to the original complaint and contends that the failure to file a verified claim is fatal to plaintiff's cause of action by reason of the amendment to Section 5856. The amendment provides: "Provided, further, as a prerequisite to recovery of damages under this section, a verified claim therefor, setting forth the date and place the injury or damage occurred and the amount of the damage sustained, shall be filed with the county supervisor, or other governing body, of the county or counties against which such claim is made, within one hundred eighty (180) days after the alleged injury or damage".
The issue presented by the demurrer is legally very narrow, and boils down to this, should the provisions in the amendment as to filing a verified claim within 180 days, be given a literal construction, or should it be held that plaintiff has made a substantial compliance with the amendment, which would permit the plaintiff a trial upon the merits.
It was clearly the intention of the Legislature in passing the amendment requiring the filing of a claim with the County within one hundred and eighty (180) days after the alleged injury or damage was to give the county prompt notice of any alleged claims, so that the county might promptly and properly investigate the occurrence, and thereby determine its liability, if any.
In the instant case, the complaint alleges (which, of course is admitted by the demurrer) that the alleged accident occurred on December 4, 1948, and "that plaintiff, by her attorneys did appear, on or about, the 15th day of January, before the county supervisor and the County Board of Commissioners at a formal meeting, and did present to the said Supervisor and the County Board of Commissioners, in detail, all the facts and circumstances giving rise to plaintiff's cause of action, setting forth the date and place the injury occurred, and an estimate of the damage sustained by the plaintiff, etc."
It further appears from the amended complaint, that the plaintiff's claim was discussed with the County Attorney, and on February 4, 1949, two months to the day, after the accident, (the amendment allows six months for the filing of the verified claims), plaintiff's attorney wrote the county attorney in full detail with reference to the facts giving rise to plaintiff's cause of actions, giving more information than required by the amendment.
It affirmatively appears upon the face of the amended complaint that the County was in possession of more facts within forty-five days of the accident, than was required to be furnished in one hundred and eighty days. It therefore follows that the County was permitted to commence its investigation of the alleged occurrence one hundred and thirty-five (135) days earlier than if the plaintiff had made a literal compliance with the amendment by filing a verified claim on the one hundred and eightieth day after the occurrence.
The County had been benefited, not damaged by the conduct of the plaintiff under the facts here, and the plaintiff should not be denied a trial upon the merits of her case by a mere failure to make a literal compliance with the amendment when she has, in fact, and in law, made a substantial compliance with the amendment, which resulted in benefit to the defendant.
I have carefully considered the authorities relied upon by the defendant, and in my opinion they are all readily distinguished from the facts of this case which I have heretofore set out in some detail.
My conclusions herein are fully sustained by the reasoning and logic in Rushton v. South Carolina State Highway Department, 207 S.C. 112, 34 S.E.2d 484, and Gold v. Moragne, 202 S.C. 281, 24 S.E.2d 491. Any other conclusion would do violence to the legislative intent as expressed in the amendment under discussion, and would result in a grave injustice which the legislature did not intend.
It is therefore, Ordered, Adjudged and Decreed, that the defendant's demurrer to the plaintiff's amended complaint be, and the same is hereby overruled.
March 20, 1951.
The order of Honorable Wm. H. Grimball has been carefully considered in the light of the record and the exceptions, and we find no error.
Let the order be reported as the judgment of this Court.