*1 case retention of books records instant required Carolina, several North actions were required significant to be within the All notices were to be made State. required Charleston, In to the lessor in South addi- Carolina. given tion, rent were made Charleston. payments lease of twenty were a term guaranty agreements Most made monthly (20) years. significantly, appellants Easley, and visits South to the leased inspections premises either Carolina from until December June one personally of their representatives. find, therefore,
... that due will not be process law offended by exercise of in the instant case jurisdiction where the appellants purposefully committed voluntarily to a themselves contract guaranty South Caro- relating lina for a term of twenty (20) years.
I therefore find that the Motion of the to dis- appellants denied, miss the cause of action is and that Motion respondent Order seeking requiring appellants to answer the is hereby Complaint granted.
Affirmed. Carl Francis LYON and Sophia Lyon, Respondents, Mrs. v. CITY OF SUMTER, Appellant.
(252 (2d) S. E. 118) *2 Sumter, Erter, Lee, Moise, & appellant. Myers for Sumter, respondents. Levi & Wittenberg, for 6, 1979. February
Gregory, Justice: Mrs. Sophia Lyon Francis Lyon Carl Respondents re- of to Sumter City this action against appellant brought the The court held for loss. lower cover damages property 47-379, 1962 Code be maintained under could action de- Carolina, appellant’s and overruled of South of Laws reverse. We murrer to complaint. citizens, The
The facts are disputed. respondents are holders of Sumter, an City residents and of property more than five thou- incorporated municipality containing On 1975 the home August sand inhabitants. respondents’ fire. This action was com- by was destroyed Sumter in December 1975. The that the complaint alleges menced authority Fire under Department, acting Sumter Council, failed to- negligently City properly respond Sumter home, fire in thereby to and extinguish respondents’ to The corn- it causing totally destroyed. proximately action that the authorized Sec- expressly by alleges plant Code, which provide: tion 47-379 and Section such city 47-379. acts Liability Any § officers— any liable for all shall be property therein, thereof, or holder by any au- officers, or servants under and virtue by any agents council. of the city orders thority office, officers for etc.— abuse Liability 47-380. § violation of duty, malpractice, For wilful any neglect in cities alderman mayor abuse or oppression inhabitants so shall be liable thousand offending over five fine not one hundred dollars by exceeding punishment liable besides not exceeding thirty days, imprisonment neglect, malprac- for damages person injured tice, abuse or oppression. on the demurred to the complaint of Sumter of sovereign barred the doctrine the suit was
ground immunity. Code, 47-379, 1962 lower found that Section court immunity of sovereign waiver
constituted express Sumter This the demurrer.1 appeal overruled followed. Code, was Act No. repealed by Acts of the “Home
of the 1975 General Assembly [the however, Sec- have Rule” parties stipulated, Act]. tion effect at the time Lyons’ *3 burned, home to this lawsuit applicable is whether Section by question presented appeal Mrs. Code, authorizes an action Mr. and 1962 by loss of of to recover for the Sumter Lyon against home. their
Section 1962 was enacted as a at- proviso 22 of tached to Section Act No. of 377 the 1901 Acts of the General Act 377 of Assembly. 1901 was entitled: “An Act for to Provide of Cities of More Than Incorporation Thousand Inhabitants.” Five Section 22 of No. 377 of Act ex 1901 authorized delicto actions for defects in the streets cities more than five thousand inhabitants against having in and read as follows: entirety in who shall receive or Any person bodily injury damage street, his or a in cause- defect person property, through any or mis- reason of defect way, public way, bridge by the control of the under management anything corpora- 1 finding The lower 1962 concerning court made no Code. recover, action in an city, may limits of such within the
tion sustained of actual same, amount against street, such defect a If any thereof. him reason by or damages injury existed before or bridge causeway the person recovered by not be occurred, shall such damage Pro- ordinary weight: exceeded if his load so injured unless said shall not be liable vided, That said corporation or mismanagement: neglect was occasioned defect further, any way brought has not Provided, Such person his or her own negligent or damage such injury about Provided, further, thereto: contributed act or negligently prop- be liable all damages said shall city for by any therein holder erty thereof virtue under and by or servants agents officers, added.) (Emphasis Council. orders said authority exception with 22 of Act No. 377 Acts 40 of the Act No. is identical last proviso, Assembly. of the General 40 of was entitled as follows: No.
Act Munici- of Action a An Act for a Right Against Providing De- Reason of Sustained by Damages pal Corporation Within Streets, Sidewalks Bridges fects in the Repair Corporation. the Limits of Such Municipal 40 of Act No. law ex de- general authorizing licto for defects the streets all actions against municipali- ties of size. Section of Act No. 377 of regardless of the last and certain with the exception proviso grammati- was verbatim re-enactment of cal Act No. 40 of changes, *4 1892. Laws 22
When the 1902 Code of was Section adopted, 377 of was broken into two of Act No. 1901 parts. 1892, No. 40 of first identical to Act codi- part, No. 40 of as fied with Act 1892 Civil Code Section together 22 of Act No. 377 Section part 2023. The remaining the last was codified as Civil 1901, proviso, consisting
363 was followed by every This 1968. organization Code Section 2023 of the code. Civil Code Section revision subsequent 47-70, Civil Code in the 1962 Code as appears 47-379. as Section in the 1962 Code Section 1968 appears statute, “In of a the codification the mere rearrangement sections, of its or the combination of several of its sections section, into one code or the of one of sec- breaking up tions, with no substantial does not change phraseology, or effect thereof change meaning, purpose, operation unless an intention to do v. Con- so State clearly appears.” 507, 227 ally, S. C. 88 S. E. 591 (2d) (1955).
Here, Section 22 of No. 377 of 1901 was separated Act into in the streets” two so two identical “defect that parts could be code section. This does provisions codified one as evidence clear intention on the part legislature or effect to change operation original meaning, purpose, of Section 22 of Act No. 377 of 1901.
Since Section 1962 and Section 1962 taken from Code Civil Code Section were [1902 2023] Act, the same should be construed they Raggio together. v. Insurance Woodmen World 228 S. Society, C. Life 340, is done it be- 90 S. E. When this (2d) (1955). Code, is comes applicable apparent aof ex delicto actions connected with the obligation only of reasonable streets in condition municipality keep 44, Hill, E. Rock 109 S. Furr v. 235 S. C. safety. 697 (1959). (2d)
The lower court relied on v. Fairey City Orangeburg, 458, 88 E. v. 227 S. C. (2d) (1955); Abernathy S. Columbia, ; 213 S. 48 S. E. (2d) C. (1948) Columbia, v. 174 S. C. 177 S. and Jackson City E. for its order as authority overruling appellant’s (1934) those cases was The issue each of demurrer. presented the issue ap without reaching presented resolved supra, in Fairey, Abernathy, supra, statement and the peal, *5 Jackson, 47- the of Section application and supra, discussing of this are not appeal. dispositive court the order of lower overruling ap- Accordingly, is reversed. to the complaint demurrer respondents’ pellant’s Reversed. JJ., Littlejohn Rhodes, C. J., concur.
Lewis, and J., Ness, dissents.
Ness, : (dissenting) Justice common law doctrine dissent, I convinced obsolete, inequitable is an principle immunity sovereign should be discarded. which ver- doctrine, is today, illegitimate it exists as wrong.” can no “the do king maxim
sion of the that original is and it since vanished has long The basis for the doctrine reality. the rule in time to re-examine light in fol- had its immunity country Sovereign genesis the eco- It was based on Revolutionary War. lowing that nomically govern- consideration young practical claims. ment could not bear the burden of financial negligence immu- of sovereign which logic spawned doctrine nois in its sound nity, inception, however it have been may In view in- longer compelling. reality liability surance is use, available and is in the doctrine widespread has become an anachronism. a rule When reason behind is time, whittled away by rule should passage on the of stare decisis alone. As persevere ground recognized Roscoe “law Legal Pound Interpretations History, still.” must be it stand stable cannot yet dogged adherence to this con- majority’s outmoded date, to me. To cept more than 38 states incomprehensible either have abolished amended the doctrine of sovereign I dissent immunity. attempted Boyce v. Lancaster my Natural Gas 266 S. C. E. County Authority, S. trace the of the doctrine from history (21) (1976), modern demise. Sufice it to say to its its colonial beginnings of stare decisis cannot resuscitate principle that believe by actual has been discredited experience a doctrine which of fairness and justice. considerations eclipsed *6 in its doctrine abolish the sovereign immunity would that where individual suf- hold an entirety prospectively direct, or loss proximately a property fers injury personal or em- unit of a governmental caused negligence the in- within the scope employment, while acting ployee for the wrong. recover may individual jured within here comes squarely wrong complained The word- 47-380 (1962). of Code 47-379 language §§ city “Any not be plainer: of Code 47-379 could ing § all property shall liable the. . . .” supplied.) thereof (Emphasis provisions above interpretation majority’s to justify Moreover, in attempt tortured contrived. leg- to the parent reference of the statutes by construction con- islation, language this broad overlooks majority 22 of Act of 1901: tained in No. 377 § who receive or shall “Any damage person bodily injury street, in his defect person through reason causeway, public way, bridge defect control the cor- under the mismanagement anything . . . recover . . .” poration may (Emphasis supplied.) the express language majority, failing recognize insurance, has done liability statutes and the reality remain this State who power- disservice to citizens of mu- them committed less redress wrongs against nicipalities.
I would affirm.