Matthews v. Davis, Dir. Gen.

117 S.E. 642, 124 S.C. 509, 1923 S.C. LEXIS 140

• Court: Supreme Court of South Carolina
• Decided: May 16, 1923
• Docket: 11235
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an action commenced, by service of summons and complaint on the agent at Florence,. S. C., of the United States Railroad Administration, on the 6th day of February, 1920. The action was to recover damages alleged to have been sustained by plaintiff on account of a willful assault and battery, alleged to have been committed by one M. A. Bell, alleged in the complaint to have been at the time of the assault and battery an agent of the Director General of Railroads.

The case came on for trial at the November term of Court for Florence, 1921, before his Honor, Judge Gary. Upon the call of the case defendant demurred to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, in that it appears on the face thereof that the entire injury alleged to have been sustained by the plaintiff was due to the willfulness of an alleged employee of the Director General of Railroads, and not to negligence, and ,in that the Director General of Railroads cannot be sued for willful injuries. The demurrer was overruled by the Court, and the trial was had with a jury. It resulted in a verdict in favor of the plaintiff in the sum of $6,000. His Honor on a motion for a new trial granted a new trial unless plaintiff should remit all of the verdict except $1,500.

At the close of plaintiff’s testimony a motion for a nonsuit was made by the defendant and refused. A motion was made by defendant for a directed verdict at the close of all of the evidence and refused.

After entry of judgment defendant appeals and by three exceptions alleges error in not sustaining demurrer, in not granting a nonsuit, and in not directing a verdict for the de- ■ fendant.

A careful examination of the evidence convinces us that there was no element of negligence in the case; whether the assault and battery was unprovoked, or whether Bell was defending himself, makes no difference. The government is not responsible for a willful assault and battery by a party in its service, in the absence of any Statute by Congress making it liable and allowing the government to be sued, and we know of no such authority authorizing suit by plaintiff, in this case or any one similarly situated. The government cannot be sued and made liable without its consent, given in some act of Congress, for torts, misconduct, misfeasance, or laches of its officers or employees. Bigby v. United States, 188 U. S., 400; 23 Sup. Ct., 468 47 L. Ed., 519. Hill v. United States, 149 U. S., 593; 13 Sup. Ct., 1011; 37 L. Ed., 862; Gibsons v. United States, 8 Wall., 269; 19 L. Ed., 453.

No specific authority conferred by Congress has been cited to allow the plaintiff to recover in the case before us, for we think it is an attempt to recover on account of a wilful tort committed by an alleged agent and employee of the government.

Missouri Pacific R. Co. v. Ault, 256 U. S., 554; 41 Sup. Ct., 593; 65 L. Ed., 1087, decides that actions against the Director General of Railroads can be such only as are authorized by acts of Congress.

The Director General cannot be sued for willfulness. Rowell v. Hines, 114 S. C., 339; 103 S. E., 545. This suit cannot be properly maintained against the Director General, and the exceptions are sustained, the judgment reversed, and the complaint dismissed.

Reversed.

Mr. Chief Justice Gary and Mr. Justice Eraser concur.