168 S.E. 391 | S.C. | 1933
March 9, 1933. The opinion of the Court was delivered by This is an action for damages for personal injuries. The undisputed facts, briefly stated, are that the defendant, one of the school districts of Spartanburg County, was without a school for white children in 1930, all such pupils living in the district being transported by it by motor bus to a school at Enoree, S.C. The plaintiff, at the time he received his injuries, was about nine years old and a resident of defendant district. On the morning of the accident, he was taken on the bus at the usual place on its route and, with about 20 others, conveyed to the school at Enoree. After all the children were out, the driver, as was his custom, began to back the bus for the purpose of driving it from the school grounds, and the plaintiff, who at the moment was behind it, was struck and painfully injured.
The complaint alleged, inter alia, that plaintiff's injuries were caused by the negligent and willful manner in which the defendant drove, backed, and operated its motor bus. *193 The defendant denied that any of its acts caused the injuries which the plaintiff sustained and alleged that they were due to his own negligence and willfulness.
The case was tried in the Court of Common Pleas for Spartanburg County in April, 1932, and resulted in a verdict for the plaintiff for $1,000.00. The verdict was returned on April 9, the Court adjourned sine die on April 23, and on April 30 counsel for the defendant served upon counsel for plaintiff the following notice: "You will please take notice that the defendant, School District No. 85, intends to appeal from the verdict rendered in the above-entitled case to the Supreme Court and will ask that Court reverse and set aside said verdict upon exceptions to be hereafter served upon you."
Later, defendant's counsel served upon counsel for plaintiff a proposed case for appeal, containing the following as a statement of fact: "The case was tried at the March, 1932, term of Court before a jury and resulted in a verdict of One Thousand Dollars in favor of the plaintiff. This appealis from the judgment duly entered thereon." (Italics added.)
The plaintiff thereafter served upon the defendant the following proposed amendments: (1) Strike out the sentence, "This appeal is from the judgment duly entered thereon"; and (2) insert the following: "Within ten days after rising of the Court at which the verdict was rendered, the appellant's attorney served on respondent's attorneys the following notice, which is the only notice served in respect to an appeal." (And then followed the notice given by the defendant's counsel of intention to appeal above quoted.)
The defendant declined to agree to the proposed amendments and the case was submitted to the trial Judge for settlement. He refused plaintiff's proposed amendment (1) but allowed (2). From this order the plaintiff appeals, alleging that the trial Judge was in error in refusing to allow his first proposed amendment, for the reason that the Court *194 thereby "forcibly inserted in the statement of facts as an incontrovertible fact a controverted conclusion of law, and virtually undertook to determine against the plaintiff's contention a question he is entitled to present on this appeal."
The main question presented by the appeal of the defendant is whether the Court erred in refusing the motion for a directed verdict, upon the ground that a school district, being a political subdivision of the State and county, is not liable in an action for damages for a tort committed by its officers or agents, as there is no statute expressly creating such liability.
Section 781 of the Code of 1932 contains the following provision: "In every appeal to the Supreme Court from an order, decree or judgment granted or rendered at chambers from which an appeal may be taken to the Supreme Court the appellant or his attorney shall, within ten days after written notice that the said order has been granted or decree or judgment rendered, give notice to the opposite party or his attorney of his intention to appeal, *195 and in all other appeals to the Supreme Court the appellant or his attorney shall, within ten days after the rising of the Circuit Court, give like notice of his intention to appeal to the opposite party or his attorney. * * *"
It is to be noted that this statute does not specify what the notice shall contain other than that it shall advise the opposite party or his attorney of an intention to appeal, and provides that the notice must be given, in such cases as the one before us, within ten days after the rising of the circuit Court. See Foster v. Telegraph Company,
The contention of the plaintiff here is that, while judgment was entered in this case on May 4, 1932, the defendant stated specifically in its notice, served upon the plaintiff four days prior thereto, that it intended to appeal "from the verdict" and would ask the Supreme Court to "reverse and set aside said verdict"; and that if the language of the notice means anything, it indicates conclusively that it was the intention of the defendant to appeal from the "verdict" and defendant should not now be heard to say that it intended to and did appeal from the judgment rendered.
From a careful study of the statute and our decisions thereabout, we conclude that the position taken by plaintiff is more technical than substantial. As we have indicated, it appears that the purpose of the notice is only to advise the opposite party that an appeal to the Supreme Court is intended; the statute itself prescribes no particular form in which the notice must be given. Our decisions are to the effect that the appeal must be from final judgment and that fact should appear from the transcript of record. We, therefore, think, and so hold, that the fact of the entry of final judgment and not the exact language used in the notice is determinative of the question here raised. *196
The plaintiff relies upon Hanner v. Hillcrest LandCompany,
The position of the plaintiff is that no statutory permission is necessary to suit against a political subdivision of *197 the State on contracts or the taking of property without compensation, as such actions may be maintained at common law; and that, if the quoted provision of Section 5350 permitting school districts to be sued means anything, it must necessarily have reference to actions in tort.
This position is not tenable. While it is true that political subdivisions of the State may be sued on their contracts without statutory provision, we do not think that it was the intent of the Legislature, in the enactment of the above-quoted section, to make a school district liable in an actionex delicto, as it is not so expressly provided by its terms.
The rule of law in this jurisdiction is thus stated inRandal v. State Highway Department,
As this rule applies to school districts, and as it does not appear that such districts are made liable in actions ex delicto by any express enactment of the Legislature, it follows that the defendant's motion for a directed verdict should have been granted.
The judgment of the Circuit Court is reversed and the case remanded to that Court, with instructions that judgment be entered up for the defendant under Rule 27 of this Court.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM concur. *198