Patrick v. South Carolina Highway Department

Supreme Court of South Carolina

Patrick v. South Carolina Highway Department

133 S.E.2d 751, 243 S.C. 246, 1963 S.C. LEXIS 34

CourtSupreme Court of South Carolina

DecidedDecember 2, 1963

Docket18126

StatusPublished

This text of 133 S.E.2d 751 (Patrick v. South Carolina Highway Department) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Patrick v. South Carolina Highway Department, 133 S.E.2d 751, 243 S.C. 246, 1963 S.C. LEXIS 34 (S.C. 1963).

Pincite

Opinion

Brailsford, Justice.

The sole question involved on this appeal is whether the complaint in an action against the South Carolina High[247]*247way Department for the wrongful death of a five-year-old child must allege that the parents of the child, for whose benefit the action is brought, were not contributorily negligent. We think that the circuit court correctly concluded that such an allegation is unnecessary.

The relevant sections of the South Carolina Code deal with the waiver of the Department’s immunity from suit. Sections 33-229 through 33-232 prescribe the conditions on which actions for personal injury or property damage may be prosecuted and require that the person bringing the action allege and prove that he did not bring about the injury by his own negligence nor negligently contribute thereto. Section 33-233 waives the Department’s immunity from suit for wrongful death, where such death results from an injury for which the Department could have been sued by the decedent had he survived. The complaint in such an action must allege that the decedent’s negligence did not cause or contribute to his injury. Otherwise, the complaint would not state facts sufficient to show that the decedent could have maintained an action had he survived, which is the statutory requirement. The statute simply does not require allegation or proof that the beneficiaries of an action for wrongful death were not contributorily negligent. Hence, any such negligence is a matter of defense under the general law.

The complaint in this action alleges that the decedent did not negligently cause or contribute to his injury. We express no opinion as to whether this allegation was necessary in view of the tender age of the child and the conclusive presumption that he was incapable of contributory negligence.

Affirmed.

Taylor, C. J., and Moss, Lewis and Bussey, JJ., concur.

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Brailsford, Justice.

The sole question involved on this appeal is whether the complaint in an action against the South Carolina High[247]*247way Department for the wrongful death of a five-year-old child must allege that the parents of the child, for whose benefit the action is brought, were not contributorily negligent. We think that the circuit court correctly concluded that such an allegation is unnecessary.

The relevant sections of the South Carolina Code deal with the waiver of the Department’s immunity from suit. Sections 33-229 through 33-232 prescribe the conditions on which actions for personal injury or property damage may be prosecuted and require that the person bringing the action allege and prove that he did not bring about the injury by his own negligence nor negligently contribute thereto. Section 33-233 waives the Department’s immunity from suit for wrongful death, where such death results from an injury for which the Department could have been sued by the decedent had he survived. The complaint in such an action must allege that the decedent’s negligence did not cause or contribute to his injury. Otherwise, the complaint would not state facts sufficient to show that the decedent could have maintained an action had he survived, which is the statutory requirement. The statute simply does not require allegation or proof that the beneficiaries of an action for wrongful death were not contributorily negligent. Hence, any such negligence is a matter of defense under the general law.

The complaint in this action alleges that the decedent did not negligently cause or contribute to his injury. We express no opinion as to whether this allegation was necessary in view of the tender age of the child and the conclusive presumption that he was incapable of contributory negligence.

Affirmed.

Taylor, C. J., and Moss, Lewis and Bussey, JJ., concur.

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Bluebook (online)

133 S.E.2d 751, 243 S.C. 246, 1963 S.C. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-v-south-carolina-highway-department-sc-1963.